Appendix — Page v. Mahaffey

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Supreme Court, U.S.

FILED

No. 1981466 MAR15 199

OFFICE OF THE CLERK

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1998

THOMAS PAGE, Warden,

. Petitioner,

JERRY MAHAFFEY,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

SEPARATE APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI

JAMES E. RYAN

Attorney General

State of Illinois

100 West Randolph Street

12th Floor

Chicago, Illinois 60601

Counsel for Petitioner

RICHARD A. DEVINE

State’s Attorney

Cook County, Illinois

RENEE GOLDFARB*

ARLEEN C. ANDERSON

JUDY L. DeANGELIS

Assistant State’s Attorneys

309 Richard J. Daley Center

Chicago, Illinois 60602

(312) 603-5496

Of Counsel *Counsel of Record

Midwest Law Printing Co., Chicago 60610, (312) 321-0220

} r ? (¥

TABLE OF CONTENTS

PAGE

Mahaffey v. Page, 162 F.3d 481 (7th Cir. 1998)

(decision of the United States Court of

Appeals for the Seventh Circuit upon

WEI 0 oe ee re we ee Al

Mahaffey v. Page, 1999 U.S. App. LEXIS 698

(7th Cir. Jan. 15, 1999) (denial of Petitioner’s

Petition for Rehearing with Suggestion for

a ee NE ee ee es Bl

Mahaffey v. Page, 151 F.3d 671 (7th Cir. 1998)

(original panel decision of the United States

Court of Appeals for the Seventh Circuit) ..... Cl

Mahaffey v. Page, 160 F.3d 1139 (7th Cir. 1998)

(grant of the Respondent’s Petition for

INN os Sr ag ee ale ei D1

Mahaffey v. Peters, 978 F.Supp. 762 (N.D. Ill. 1997)

(District Court’s denial of petition for writ

OE PN OI os eS eee ee ces ok ks El

Mahaffey v. Peters, No. 95 C 6623 (Nov. 18, 1997)

(District Court’s grant of certificate of

probable cause or of appealability) ..-....... Fl

Mahaffey v. Peters, No. 95 C 6623 (Dec. 18, 1997)

(District Court’s denial of Respondent’s

Motion to Alter or Amend the Judgment) ..... Gl

People v. Mahaffey, 128 Ill. 2d 388, 539 N.E.2d

1172, 132 Ill. Dec. 366 (1989) (decision

of the Illinois Supreme Court affirming

Respondent’s convictions and death

PE hres ree te eee eee eee ee H1

APPENDIX A

JERRY MAHAFFEY, Petitioner-Appellant, v.

THOMAS PAGE, Warden, Respondent-Appellee.

No. 97-4137

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

162 F.3d 481; 1998 U.S. App. LEXIS 29496

November 19, 1998, Decided

SUBSEQUENT HISTORY: As Amended November 20,

1998.

Rehearing In Banc and Rehearing Denied January 15,

1999, Reported at: 1999 U.S. App. LEXIS 698.

PRIOR HISTORY: [*1] Appeal from the United States

District Court for the Northern District of Illinois,

Eastern Division. No. 95 C 6623. James B. Zagel,

Judge.

Original Opinion of August 6, 1998, now Partially Va-

cated, Reported at 1998 U.S. App. LEXIS 18189.

DISPOSITION: REVERSED judgment of district court

and order the writ be granted unless, within 120 days,

the state trial court holds a new hearing on Mahaffey’s

Batson claim in accordance with this opinion. Our prior

opinion in Mahaffey v. Page, 151 F.3d 671 (7th Cir.

1998), vacated to the extent that it is inconsistent with

this decision.

CORE TERMS: juror, excused, prima facie, prosecutor,

prima facie case, peremptory, jury venire, venireperson,

race-neutral, defense counsel, jury selection, state trial,

similarity, pretextual, articulate, venire, ultimate issue,

prior opinion, raceneutral, proceeded, stricken, exclud-

ing, comparing, federal district, matter of law, racial

group, come forward, voir dire, de novo, discriminate

COUNSEL: For JERRY MAHAFFEY, Petitioner - Ap-

pellant: Alan M. Freedman, MIDWEST CENTER FOR

JUSTICE, LTD., Chicago, IL USA. Gary Prichard, MID-

WEST CENTER FOR JUSTICE, Chicago, IL.

For THOMAS F. PAGE, Warden, Respondent - Appel-

lee: Deborah L. Ahlstrand, OFFICE OF THE ATTOR-

NEY GENERAL, Chicago, IL USA. Renee G. Goldfarb,

OFFICE OF THE STATE’S ATTORNEY OF COOK

COUNTY, Chicago, IL USA.

JUDGES: Before CUMMINGS, FLAUM, and ROVNER,

Circuit Judges. FLAUM, Circuit Judge, dissenting.

OPINION BY: ROVNER

OPINION: ROVNER, Circuit Judge. This case is before

us on rehearing by the panel solely of the Batson issue.

The details of the crime are set forth in our prior opin-

ion, Mahaffey v. Page, 151 F.3d 671 (7th Cir. 1998). We

need only review the facts relevant to the Batson issue.

Jerry Mahaffey was convicted of murder, attempted

murder, aggravated battery, home invasion, armed rob-

bery, residential burglary, and theft, and ultimately

sentenced to death, by a jury comprised of eleven

whites and one Asian-American. Mahaffey [*2] and his

brother, African-Americans from the South side of

Chicago, were accused of these heinous crimes against

three white victims from the North side of the city. The

State exercised peremptory challenges against all seven

African-American members of the jury venire.

While Mahaffey’s direct appeal to the Illinois Su-

preme Court was pending, the United States Supreme

Court decided Batson v. Kentucky, 476 U.S. 79, 90 L.

Ed. 2d 69, 106 S. Ct. 1712 (1986). In accordance with

the mandate of Batson, the Illinois Supreme Court

remanded Mahaffey’s case, ordering the trial court to

conduct a hearing and to determine whether jury

selection complied with that decision. After conducting

that hearing, the state trial judge concluded that Ma-

haffey had failed to establish a prima facie case of

discrimination under Batson. The Illinois Supreme

Court affirmed on that basis, and the federal district

court subsequently declined to issue a writ of habeas

corpus. In finding no Batson violation in the selection

of Mahaffey’s jury, both the state supreme court and

the federal district court effectively deferred to the trial

court’s conclusion that Mahaffey had failed to establish

a prima facie case. See [*3] People v. Mahaffey, 128 Ill.

2d 388, 539 N.E.2d 1172, 1184-85, 132 Ill. Dec. 366 (Ill.

1989), cert. denied, 497 U.S. 1031 (1990); United States

ex rel. Mahaffey v. Peters, 978 F. Supp. 762, 781-82

(N.D. Ill. 1997).

As an initial matter, we must determine whether the

trial court ever proceeded beyond the prima facie

determination in this case. The petition for rehearing

and answer to that petition have clarified, and our

review of the record confirms, that the trial court never

ventured beyond that first stage of the Batson inquiry.

Indeed, all courts that have reviewed this case to this

point are in agreement on that point, and their con-

struction of the record is entitled to deference. More-

over, the trial court never developed the facts that

would be necessary for the next stages of the Batson

analysis; specifically, the court did not elicit facts to

compare excluded African-American jurors with accept-

ed jurors, instead focusing on a comparison of excluded

jurors with one another. Finally, because the trial court

dismissed Mahaffey’s Batson claim at the prima facie

stage, the government was never required to articulate

its actual reasons for striking the African-American

jurors [*4} and defense counsel consequently was never

given an opportunity to address the prosecutor’s true

reasons for the exclusions.

A Batson hearing normally progresses through 3

stages: (1) the defendant must make a prima facie

showing that the prosecutor has exercised peremptory

challenges on the basis of race; (2) once that showing

has been made, the burden shifts to the prosecutor to

articulate a raceneutral explanation for striking the

jurors in question; (3) the trial court, after hearing the

defendant’s response, must decide whether those rea-

sons are pretextual and whether the defendant has

thus carried his burden of proving purposeful discrimi-

nation. Batson v. Kentucky, 476 U.S. 79, 96-98, 90 L.

Ed. 2d 69, 106 S. Ct. 1712 (1986). There are allowable

deviations from this three-step process. In Hernandez

v. NY, 500 U.S. 352, 359, 114 L. Ed. 2d 395, 111 S. Ct.

1859 (1991), the Supreme Court held that if the prose-

cutor immediately proceeds to give race-neutral reasons

and the trial court rules on the ultimate question of

intentional discrimination, there is no constitutional

problem merely because the court bypassed the prima

facie stage.

In this case, however, the court never proceeded [*5]

beyond the prima facie determination, and the State

was not called upon to articulate its reasons for exercis-

ing peremptory challenges against the African-Ameri-

can members of the venire. In addressing Mahaffey’s

prima facie showing, the State did note certain explana-

tions for its exclusions of the African-American venire-

persons that were “apparent” from the record. The dis-

cussion of those “apparent” reasons for exclusion has

generated some inconsistent arguments in the briefs as

to just how far the Batson inquiry proceeded. Mahaffey

argues, for example, that the district court erred in

failing to proceed beyond the prima facie stage of the

analysis. He further contends, however, that the ex-

planations the State proffered for excluding the African-

American jurors were pretextual, and that we should

find discrimination as a matter of law. This implies

that the State provided its actual reasons for the chal-

lenges with respect to every African-American excluded,

and that we can reach the ultimate issue of discrimina-

tion as the court did in Hernandez. Somewhat inconsis-

tently, Mahaffey also argues that if we find that the

reasons are not pretextual, the case should be remand-

ed to allow him [*6] an opportunity to address the gov-

ernment’s actual reasons individually.

The defendant’s characterization of the Batson hear-

ing in this case unnecessarily obfuscates the only issue

properly before this Court. The state trial court, state

supreme court, district court, and the State itself in its

brief, all maintain that the Batson hearing was limited

to the prima facie determination. Although the State

provided more detailed reasons for its challenges than

is perhaps necessary at that stage, it has consistently

asserted that it never provided the actual reasons for

its challenges of each potential African-American juror.

See, e.g., Brief of Attorney General at p.13 (arguing

that only “apparent,” not actual reasons were provided

and declaring that “the prosecution never tendered

‘race-neutral’ reasons at trial, nor during any appellate

proceeding, state or federal.”). Instead, the State lim-

ited its explanations to identification of “apparent”

similarities on the record between excluded white

venirepersons and excluded African-Americans, arguing

that those apparent similarities negated any inference

of discrimination.’ Those apparent similarities, howev-

' This difference between actual and apparent reasons is not

one of semantics. Apparent reasons are those that are discern-

ible on the record, regardless of whether they were the actual

motivation for the challenges. As the Attorney General argued

and the district court found, the apparent explanations were

“directed to explaining the pattern of challenges” used during

the jury selection. One could imagine a case in which all

stricken jurors were attorneys, for example, in which the ap-

parent explanation could negate an inference of race discrimi-

nation, regardless of whether the attorney status was the

actual reason for each strike. In such a case, the apparent

reasons might be sufficiently convincing that the court would

not require the prosecutor to come forward with actual rea-

sons.

The discussion of apparent reasons for the challenges in this

case thus consisted of pointing to characteristics on the face of

the voir dire record which demonstrated a similarity among

stricken jurors. For instance, the prosecutor pointed out that

both an African-American and a white juror excluded were

under age 25. Such “apparent” reasons were designed to indi-

cate a pattern of challenges against African-American mem-

bers of the venire explainable on grounds other than race. If

a prima facie violation had been found, the State would have

been forced to identify a race-neutral justification for each

(continued...)

er, cannot be mistaken for the [*7] actual reasons for

the challenges. Only after the defendant establishes a

prima facie case is the State required to reveal its

actual reasons for the exclusions. Moreover, at that

stage, the relevant comparison is between the excluded

African-Americans and the jurors that were allowed to

sit on the jury. Because the trial judge never reviewed

the actual reasons for the challenges and did not

compare the excluded African-American venirepersons

with those accepted on the jury, we are limited on

appeal to determining whether the prima facie showing

was met.

[*81 We note that this conclusion would be mandated

in any case because the trial court informed Mahaffey

that he could respond to the raceneutral reasons after

the prima facie determination was made. Although

Mahaffey’s counsel argued at some length that the chal-

lenges demonstrated discrimination, he also repeatedly

noted that he would respond in more detail if the court

determined that the prima facie showing was met. The

court ultimately found to the contrary, of course, and

thus Mahaffey never had the opportunity to address the

State’s rationale for excluding the African-American

jurors. In those circumstances, it would be inappropri-

' (...continued)

excluded African-American juror (its “actual” reasons), and

defense counsel would have been able to rebut that justifica-

tion for each juror. Continuing the above example, if the prose-

cutor had asserted age as the actual reason for excluding the

juror, the defense counsel could have argued that it was pre-

textual because four white jurors in their twenties were not

excluded.

ate for us to proceed on appeal to the ultimate issue of

discrimination even with a more complete record.

II.

Therefore, the only issue properly before us today is

whether Mahaffey established a prima facie case of dis-

crimination. Unlike the ultimate issue of discriminatory

intent, which as a factual question is entitled to defer-

ential review (see Batson, 476 U.S. at 98 n.21), the pre-

liminary question of whether a prima facie case has

been shown presents a mixed question of law and fact

(see, e.g., United States v. Bergodere, 40 F.3d 512, 516

(1st Cir. [*9] 1994), cert. denied, 514 U.S. 1055, 131 L.

Ed. 2d 318, 115 S. Ct. 1439 (1995); United States v.

Alvarado, 891 F.2d 439, 443 (2d Cir. 1989), vacated on

other grounds, 497 U.S. 543 (1990)), which the appel-

late courts should review de novo. Although some of our

sister circuits have utilized a clearly erroneous stan-

dard in their review of that question (see Bergodere, 40

F.3d at 516 (citing cases)), the Supreme Court’s recent

decision in Ornelas v. United States, 517 U.S. 690, 134

L. Ed. 2d 911, 116 S. Ct. 1657 (1996), points in the di-

rection of de novo review. The question of whether an

inference of discrimination may be drawn from a set of

undisputed facts relating to the racial makeup of the

jury venire and the prosecutor’s exercise of peremptory

challenges is, like the probable cause question before

the Court in Ornelas, one over which the appellate

courts should exercise a degree of control that a clear

error standard would not afford. Jd. at 697. As in

Ornelas, factual scenarios will recur in this context,

and de novo review would allow for a measure of con-

CE WARE mare's

sistency in the treatment of similar factual settings,

rather than permitting different trial judges to reach

inconsistent conclusions [*10] about the prima facie

case on the same or similar facts. Id. at 697-98; cf.

Mahaffey, 978 F. Supp. at 781 (“This is not to say that

Judge Hett could not have decided the question the

other way, but on this record, given his participation in

the jury selection, his judgment that there was no

prima facie case was permissible.”). Ultimately, how-

ever, the standard of review question is largely beside

the point, for even if a more deferential standard were

applied, we would have to conclude that Judge Hett

clearly erred in finding that no inference of discrimina-

tion arose from the facts and circumstances here.

We recognize, of course, that Batson requires us to

look to all the relevant facts and circumstances in

assessing whether an inference of discrimination should

arise. See Batson, 476 U.S. at 96. Yet by far the most

important factor in this case, and one that the Illinois

courts were too quick to overlook, is that all seven

African-American members of the jury venire were

excused by the State, meaning that not a single mem-

ber of Mahaffey’s own race was seated on the jury that

decided his fate.” This is therefore not a case in which

only one or two members of a particular racial [*11]

group were excused while other members of the same

racial group remained; it is instead a case where the

State exercised seven of thirteen total challenges to

2 There was of course an African-American alternate who sat

through Mahaffey’s trial, but she did not deliberate on the ver-

dicts either at the conviction or penalty phase, and she was

admitted on the jury only after the State had exhausted its

peremptory challenges.

Al10

exclude every member «f Mahaffey’s own race. That is

fairly compelling evidence of discrimination, at least at

the prima facie case stare, where the State has not yet

been required to articulate its race-neutral reasons for

striking the African-American jurors. An inference of

discrimination is particularly appropriate in light of the

Supreme Court’s admonition in Batson that we be

mindful of the fact that “peremptory challenges consti-

tute a jury selection practice that permits ‘those to dis-

criminate who are of a mind to discriminate.’” 476 U.S.

at 96 (quoting Avery v. Georgia, 345 U.S. 559, 562, 97

L. Ed. 1244, 73 S. Ct. 891 (1953)). The Supreme Court

in Batson emphasized that an inference of discrimina-

tion may arise where the prosecutor makes a pattern of

strikes against African-American jurors. 476 U.S. at 97.

Such a pattern plainly is evident in the State’s juror

challenges here, where the prosecutor excused each and

every African-American member of the jury venire. See

McCain v. Gramley, 96 F.3d 288, 292 (7th Cir. 1996)

(inference [*12] of discrimination may be drawn “where

there are only a few members of a racial group on the

venire panel and one party strikes each one of them”),

cert. denied, 520 U.S. 1147, 117 S. Ct. 1320, 137 L. Ed.

2d 482 (1997); United States v. Sowa, 34 F.3d 447, 452

(7th Cir. 1994) (in challenge to use of peremptory chal-

lenges by defense counsel, court held that “the govern-

ment easily made its prima facie case that the peremp-

tory challenges were motivated by race; each and every

black venireperson [six in all] was challenged.”), cert.

denied, 513 U.S. 1117, 130 L. Ed. 2d 796, 115 S. Ct.

915 (1995); Splunge v. Clark, 960 F.2d 705, 707 (7th

Cir. 1992) (prima facie case shown where both African-

American members of the jury venire were excluded by

the prosecution).

—

All

Daly | aia og pana Fora ces

[*13] And lest we forget, the crimes at issue in this

case were obviously racially-sensitive—Mahaffey, a

young African-American male from Chicago’s South

side, was charged with murdering a white couple on the

North side, and with attempting to murder their young

son. This is therefore a case in which the racial compo-

sition of the jury could potentially be a factor in how

the jury might respond to Mahaffey’s defense at trial,

as well as to his arguments in mitigation at the capital

sentencing phase. See Williams v. Chrans, 945 F.2d

926, 943-45 (7th Cir. 1991), cert. denied, 505 U.S. 1208,

120 L. Ed. 2d 877, 112 S. Ct. 3002 (1992). Before the

judgment of the essentially all-white jury in this case

is executed, the State at least should be required to

explain why it excused each venire person of Mahaffey’s

own race, and Mahaffey should be allowed to respond

to those reasons.

sc a Me SoSiapagae ted ie ets

We are sensitive.to the fact that Judge Hett was

present during the jury voir dire and that, in his view,

all of the relevant facts and circumstances did not

produce an inference of discrimination. Yet Judge Hett

came to that conclusion only after comparing the seven

African-Americans whom the State excused from the

(*14] jury with the six whites who were similarly ex-

cused. The state trial judge essentially found that be-

cause the excused African-Americans and the excused

whites had similar characteristics, an inference of dis-

crimination should not be drawn from the decision to

strike the African-Americans. Batson Hearing Tr. at 54.

But rather than comparing the excused African-Ameri-

cans to the excused whites, the trial judge should have

been comparing the excused African-Americans to the

jurors who remained, for only through such a compari-

Al12

son could the judge assess whether race played any role

in the State’s challenges. If an excused African-Ameri-

can juror had characteristics and opinions that were

similar to those of a juror who sat, for example, then an

obvious inference, at least prior to the articulation of a

race-neutral explanation for the strike, would be that

the strike was racially-motivated. As far as the voir

dire record would reveal, the stricken juror’s race would

be the only characteristic distinguishing the African-

American from the juror who was retained.

It is significant in that regard that Judge Hett found

at the Batson hearing that the whites who sat on Ma-

haffey’s jury were similar [*15] to the African-Amer-

icans the State had excused. Id. at 51. That finding

suggests that the State may have used its peremptory

challenges to single out African-American venirepersons

for exclusion, in comparison to whites with the same or

similar characteristics. And the inference of discrimina-

tion that would arise in that circumstance is unaffected

by the fact that some whites with the same characteris-

tics also may have been excused—the State still struck

all the African-Americans while retaining some of the

whites, and despite having strikes available that went

unused.

In short, the showing made by Mahaffey at the Bat-

son hearing was sufficient as a matter of law to require

the State to come forward with raceneutral explana-

tions for each of the challenged strikes. Because the

court never required the State to do so, Mahaffey has

established a Batson violation. The proper remedy for

this Batson violation is the one set forth in Coulter v.

Gilmore, 155 F.3d 912, 922 (7th Cir. 1998). We there-

fore REVERSE the judgment of the district court and

Al13

order that the writ be granted unless, within 120 days,

the state trial court holds a new hearing on Mahaffey’s

Batson claim in accordance with [*16] this opinion. Our

prior opinion in Mahaffey v. Page, 151 F.3d 671 (7th

Cir. 1998), is vacated to the extent that it is inconsis-

tent with this decision.

DISSENT BY: FLAUM

DISSENT: FLAUM, Circuit Judge, dissenting. Based

on the analysis advanced in my prior opinion in this

case, Mahaffey v. Page, 151 F.3d 671, 675-680 (7th Cir.

1998), 1 respectfully dissent. I remain of the view that

the constitutional commands of Batson v. Kentucky,

476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986)

have been met in this matter. Accordingly, I would

deny the writ of habeas corpus and affirm the decision

of the district court.

APPENDIX B

JERRY MAHAFFEY, Petitioner-Appellant, v.

THOMAS PAGE, Respondent-Appellee.

No. 97-4137

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

1999 U.S. App. LEXIS 698

January 15, 1999, Decided

PRIOR HISTORY: [*1]

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division. No. 95 C

6623. James B. Zagel, Judge Presiding.

Original Opinion of November 19, 1998, Reported at:

1998 U.S. App. LEXIS 29496.

JUDGES: Before Honorable Walter J. Cummings, Cir-

cuit Judge, Honorable Joel M. Flaum, Circuit Judge,

Honorable Ilana Diamond Rovner, Circuit Judge.

OPINION: ORDER

On consideration of the petition for rehearing with

suggestion for rehearing en banc filed by respondent-

appellee on December 10, 1998, no judge in active

service has requested a vote thereon, and a majority* of

* Honorable Joel M. Flaum voted to grant a rehearing.

the judges on the original panel have voted to deny a

rehearing. Accordingly,

IT IS HEREBY ORDERED that the petition for re-

hearing with suggestion for-rehearing in banc be, and

the same is, hereby DENIED.

APPENDIX C

Jerry Mahaffey, Petitioner-Appellant, v.

Thomas Page, Warden, Respondent-Appellee.

No. 97-4137

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

151 F.3d 671; 1998 U.S. App. LEXIS 18189

August 6, 1998, Decided

SUBSEQUENT HISTORY: Rehearing Granted October

26, 1998, Reported at: 1998 U.S. App. LEXIS 28201.

PRIOR HISTORY: [**1] Appeal from the United States

District Court for the Northern District of Illinois,

Eastern Division. No. 95 C 6623. James B. Zagel,

Judge.

Original Opinion of August 6, 1998, now Partially Va-

cated, Reported at: 1998 U.S. App. LEXIS 18189.

DISPOSITION: Affirmed the judgment of the district

court.

CORE TERMS: prima facie case, juror, prosecutor, per-

emptory, race-neutral, excused, veniremen, ineffective

assistance, sentencing hearing, voir dire, sentence,

prima facie, stricken, brother, confession, state trial,

colleagues, venire, jury selection, death sentence, apart-

ment, defense counsel, mitigating, proceeded, suppres-

sion hearing, death penalty, jury venire, pretextual,

prison, mitigation

COUNSEL: For JERRY MAHAFFEY, Petitioner - Ap-

pellant: Alan M. Freedman, Gary Prichard, MIDWEST

CENTER FOR JUSTICE, LTD., Chicago, IL USA.

For THOMAS F. PAGE, Respondent - Appellee: Deb-

orah L. Ahlstrand, OFFICE OF THE ATTORNEY GEN-

ERAL, Civil Appeals Division, Chicago, IL USA. Renee

G. Goldfarb, OFFICE OF THE STATE’S ATTORNEY

OF COOK COUNTY, Criminal Appeals Division,

Chicago, IL USA.

JUDGES: Before Cummings, Flaum, and Rovner, Cir-

cuit Judges. ROVNER, Circuit Judge, dissenting.

OPINION BY: FLAUM

OPINION: [*674] Flaum, Circuit Judge. Jerry Ma-

haffey was convicted by an Illinois jury in 1985 of two

counts of murder, along with one count each of attempt-

ed murder, aggravated battery, home invasion, rape,

armed robbery, residential burglary, and theft. For

these crimes, he was sentenced to death. On direct

review, the Illinois Supreme Court affirmed his convic-

tion and sentence, 128 Ill. 2d 388, 539 N.E.2d 1172, 132

Ill. Dec. 366 (Ill. 1989), and the United States Supreme

Court denied his petition for certiorari, 497 U.S. 1031

(1990). Mahaffey’s state petition for post-conviction

relief was similarly unsuccessful. See 165 Ill. 2d 445,

651 N.E.2d 174, 209 Ill. Dec. 246 (ill.), cert. denied, 516

U.S. 977 (1995). He then filed this petition for federal

habeas corpus relief,’ which the district court denied.

' Mahaffey filed his petition on November 14, 1995. Therefore,

the provisions of the Antiterrorism and Effective Death Penal-

ty Act of 1996 (AEDPA) do not apply to this case. See Lindh

v. Murphy, 521 U.S. 320, 138 L. Ed. 2d 481, 117 S. Ct. 2059

(1997).

See United States ex rel. Mahaffey v. Peters, 978 F.

3 Supp. 762 (N.D. Ill. 1997). Mahaffey now appeals the

denial of the writ on a number of grounds rejected by

j the district [**2] court, and we affirm.

Jerry Mahaffey, along with his brother Reginald,

drove to Chicago’s North Side on the night of August

29, 1983 to burglarize a clothing store. The Mahaffey

brothers aborted that plan at some point, and they

instead chose to climb through an open window and

into the apartment of Jo Ellen and Dean Pueschel. The

Pueschels, along with their then eleven-year old son

Richard, were asleep at the time. After Reginald picked

up a knife from the kitchen, the brothers first entered

Richard’s bedroom and proceeded to stab him with the

knife and hit him over the head with a baseball bat

that was in the bedroom. Reginald picked up a bat as

well, and the brothers next proceeded into the Pue-

schels’ bedroom, where they began to hit Dean Pueschel

on the head with [**3] their bats. [*§675] Jo Ellen was

taken to another room, where she was raped and sodo-

mized; at some point Jerry saw Dean Pueschel attempt

to draw a gun in self-defense, so Jerry hit Dean over

the head again with his bat. When both brothers went

back into the Pueschels’ bedroom to retrieve firearms

that they had discovered, they saw Dean begin to move

and stabbed him to death. Jo Ellen was taken out to

the Pueschels’ car, where she was forced to disarm the

car’s alarm system; she was then taken back into the

apartment and beaten in the head with the butt of a

pistol, which caused her death. This last beating oc-

curred in Richard’s presence, who had regained con-

sciousness by this point. Jerry wiped down the finger-

prints on everything that he and Reginald had touched

in the apartment. Leaving Richard for dead, the broth-

ers fled in the Pueschels’ car, taking with them jewelry,

guns, and video equipment that they had stolen. Rich-

ard survived the attack and was discovered by his

grandfather the next day, dazedly wandering in the

alley near his parents’ home.’

[**4] After receiving information from the Mahaffeys’

brother, Cedric, police arrested both Jerry and Regi-

nald. They confessed to authorities, and following a

joint trial at which only Reginald testified, both Jerry

and Reginald were convicted and sentenced to death.”

Jerry Mahaffey’s conviction and sentence were affirmed

on appeal and state post-conviction review, and he now

raises four arguments on appeal of the district court’s

denial of habeas corpus relief. First, he argues that the

prosecution’s exercise of its peremptory challenges at

trial violated his Fourteenth Amendment rights. See

Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106

S. Ct. 1712 (1986). Next, Mahaffey argues that the

* For a more detailed account of the facts of this crime, see

People v. Mahaffey, 128 Ill. 2d 388, 539 N.E.2d 1172, 132 Iil.

Dec. 366 (Til. 1989).

* The Illinois Supreme Court reversed Reginald’s conviction

on direct appeal, holding that his case should have been sev-

ered in light of Jerry's confession and the fact that Jerry did

not testify at trial, which deprived Reginald of the ability to

cross-examine his brother. See People v. Mahaffey, 128 Ill. 2d

388, 539 N.E.2d 1172, 1183, 132 Ill. Dec. 366 (Ill. 1989). On

retrial, Reginald was again convicted and sentenced to death.

See People v. Mahaffey, 166 Ill. 2d 1, 651 N.E.2d 1055, 209 Ill.

Dec. 607 (1995).

5 aca bia

; C5

‘.

j prosecutor’s closing argument at the sentencing hearing

falsely implied that Mahaffey could receive a sentence

less than natural life imprisonment if the jury refused

to impose the death penalty. Mahaffey asserts that this

misrepresentation violated his rights under the Eighth

and Fourteenth Amendments. His third and fourth

arguments assert that he received ineffective assistance

from his trial counsel both at the sentencing hearing

and in arguing a motion to suppress his confession. We

will relate (**5] additional facts relevant to these argu-

ments in the context of our discussion.

II.

A. Batson Challenge

While Mahaffey’s case was pending in the Illinois

courts on direct review, the Supreme Court held in

Batson v. Kentucky; 476 U.S. 79, 96-98, 90 L. Ed. 2d

69, 106 S. Ct. 1712 (1986), that a prosecutor's discrimi-

natory use of peremptory challenges on the basis of

race could violate a defendant’s right to equal protec-

tion under the Fourteenth Amendment. Evaluation of

a Batson claim entails a three-step [**6] process. See

id. at 96. First, the defendant must make a prima facie

showing that the prosecution has exercised peremptory

challenges on the basis of race. If the defendant satis-

fies this threshold, the burden then shifts to the prose-

cution to articulate a race-neutral justification for the

disputed challenges. If a race-neutral explanation is

tendered, the court then must determine whether, in

light of the proffered justification, the defendant has

satisfied his burden of proving purposeful discrimina-

tion. See id. at 96-98; see also Purkett v. Elem, 514

———7~

U.S. 765, 767, 131 L. Ed. 2d 834, 115 S. Ct. 1769 (1995)

(per curiam); McCain v. Gramley, 96 F.3d 288, 290 (7th

Cir. 1996), cert. denied, 137 L. Ed. 2d 482, 117 S. Ct.

1320 (1997).

Griffith v. Kentucky, 479 U.S. 314, 328, 93 L. Ed. 2d

649, 107 S. Ct. 708 (1987), subsequently held that

Batson applied retroactively, and the Illinois Supreme

Court therefore directed the trial court in Mahaffey’s

case to conduct [*676] a hearing to determine whether

the prosecution had violated the Fourteenth Amend-

ment im employing its peremptory challenges. Mahaffey,

who is black, argued that the prosecution violated Bat-

son when it exercised peremptories on [**7] all seven of

the black veniremen who were considered for Ma-

haffey’s petit jury. See 539 N.E.2d at 1175. The trial

judge found that Mahaffey could not establish a prima

facie case of discrimination under Batson. The Illinois

Supreme Court affirmed this finding, see 539 N.E.2d at

1185, as did the district court below, see 978 F. Supp.

at 781-82. Mahaffey argues that the district court erred

in holding that he failed to establish a prima facie case,

and he further argues that he has established a case of

purposeful discrimination under Batson that entitles

him to a writ of habeas corpus. We reject this argument

and affirm the district court’s holding, though we em-

ploy a different analysis than the courts that previously

have addressed Mahaffey’s Batson claim.

1. Facts Relating to the Batson Claim

At the selection of Mahaffey’s jury, seven black ven-

iremen were presented for non-alternate seats following

challenges for cause. The State, which was given a total

i NEES Tee SR ee a ™

Pe Biaie Ptiaie we nase sale

of 24 peremptory challenges (Jerry and Reginald Ma-

haffey were given 12 each), exercised a peremptory on

each of the seven black veniremen presented for the

jury, and also on six white veniremen. Mahaffey’s trial

counsel moved [**8] to dismiss the venire each time the

prosecution struck a black venireman, arguing that the

prosecution was improperly excluding blacks from the

jury. This motion was renewed at the conclusion of voir

dire, which had produced a jury composed of eleven

white jurors and one Asian juror.‘ The trial judge, who

had posed all of the questions to the potential jurors

during the voir dire, expressed concern regarding the

prosecution’s use of its peremptories and invited the

prosecution to come forward with race-neutral justifica-

tions for its exercise of peremptories. The prosecution

declined to do so, as it was entitled to do prior to

Batson, and the court denied Mahaffey’s motion to dis-

miss the venire.

While Mahaffey’s appeal was pending in the Illinois

Supreme Court, that court ordered the trial judge,

Thomas Hett, to (**9] conduct a Batson hearing to

address Mahaffey’s claim that the prosecution had

discriminated in exercising its peremptory challenges.

In accordance with the procedures outlined in Batson,

see 476 U.S. at 96-98, Judge Hett was directed to

permit Mahaffey to present evidence in support of his

claim of unconstitutional discrimination and, if the

court found that Mahaffey had established a prima

* The prosecution also had two peremptory challenges in the

selection of alternate jurors. It exercised both of them on white

veniremen, and a black venireman was subsequently seated as

an alternate.

facie case of discrimination, to require the prosecution

to produce race-neutral justifications for the questioned

challenges. See 539 N.E.2d at 1175. In support of his

claim that the evidence established a prima facie case

under Batson, Mahaffey emphasized that, following

dismissals for cause, the prosecution used its peremp-

tory challenges to remove all of the black veniremen

presented for service on the jury. In addition, he argued

that the fact that the prosecution had exercised a ma-

jority of its peremptory challenges—by a seven to six

margin—on black veniremen further established a

prima facie case. Further, Mahaffey pointed out that

during the voir dire Judge Hett had asked the prosecu-

tion to explain the reasons for its use of its peremptory

challenges. Mahaffey argued that Judge Hett’s [**10]

concern was itself indicative of a prima facie case.

In response, Assistant State’s Attorney Paul Tsukono’

first argued that Mahaffey had not established a prima

facie case. In this regard, the prosecution pointed out

that it had accepted a black woman to serve as an

alternate juror, which it believed served to refute

Mahaffey’s discrimination claim. Further, the prosecu-

tion noted that, including the two peremptory chal-

lenges that it exercised in selecting alternate jurors, a

majority [*677] of its peremptories had been directed

towards white veniremen—by an eight to seven margin.

The Assistant State’s Attorney then proceeded to offer

non-discriminatory reasons for the prosecution’s exer-

cise of its peremptories. Tsukono prefaced his analysis:

° Tsukono had earlier participated in both the jury selection

and prosecution of Mahaffey’s case.

oi]

“Now, the People’s challenges against the minority

jurors can be examined from two bases, I suggest in-

dividually and collectively. I suggest that there are

reasons which are revealed [**11] from the voir dire,

reasons which are apparent from the record which

justify the State’s challenges against these minority

jurors.” The prosecutor then proceeded to describe the

justifications for exercising peremptories against t’ °

stricken black veniremen, and he tied these justifica-

tions to each of them individually. Some prospective

jurors, for example, demonstrated an unwillingness to

impose the death penalty, even though they had not

been stricken for cause; some had also demonstrated an

unwillingness or an inability to follow instructions. The

prosecution also noted that it had exercised peremp-

tories on the bases of occupation, youth, prior experi-

ence with the police, reluctance to serve on the jury,

and prior knowledge of the Pueschels’ murders. All of

these justifications, the prosecution stated, had been

used to strike both black and white veniremen. Tsukono

also noted that, in light of the evolving nature of the

jury selection process, the prosecution used a sliding

scale of scrutiny in the determination of whether or not

a juror would be chosen or excluded. Reasons which

may have existed at the very beginning of this jury

selection may have been amended, excluded, or changed

(**12] due to the composition of those already selected,

the number of challenges used and the overall composi-

tion, or the overall totality of the circumstances con-

cerning that individual juror’s background. The prose-

cutor then concluded his argument by asserting that

Mahaffey had not made a prima facie showing under

Batson.

C10

In rebuttal, Mahaffey’s counsel argued that the prose-

cution had not only argued against a prima facie show-

ing, but that it had offered its nondiscriminatory jus-

tifications as well. He stated, “I believe, your Honor,

the prosecutor has crossed over from the first stage into

the second stage and has offered a great deal of expla-

nation on why there was in fact no exclusion of Blacks

on grounds of race.” Mahaffey’s counsel then argued

that at least some of the prosecution’s asserted justifi-

cations were pretextual. For example, while the prose-

cution asserted that reluctance to serve on the jury had

been a justification for some of its peremptory dismiss-

als, Mahaffey’s counsel argued that other white jurors

whom the prosecution had not dismissed had expressed

a similar reluctance to serve. Other asserted justifica-

tions were also pretextual, Mahaffey’s counsel argued,

or were [**13] not applied consistently by the prosecu-

tion to the black and white members of the venire.

Mahaffey’s counsel concluded by stating that Mahaffey

had established a prima facie case, though he requested

further opportunity to respond to the prosecution’s prof-

fered non-discriminatory justifications.

Judge Hett, in announcing his decision, indicated that

he had made a “detailed analysis of the jury selection

process” by reading and taking notes regarding the

entire transcript of the voir dire (which had spanned

seven days), along with copies of the jury cards for all

of the prospective jurors. In explaining his own detailed

analysis, Judge Hett noted that personal characteristics

(which the prosecution had not proffered as its race-

neutral justifications), such as gender, home ownership,

and marital status, were similar in comparing the eight

white veniremen who were stricken (including alter-

Cll

nates) with the seven black veniremen who were strick-

en. He further noted that those individuals seated on

the jury did not differ significantly from those who were

stricken with respect to these characteristics. He con-

cluded, “all of the people who were excused were sim-

ilar to the people who were [**14] chosen. The Whites

who were excused were similar to the Blacks who were

excused.”

At this point, Judge Hett went on to consider the

potential jurors’ responses to his voir dire questioning

in light of the prosecution’s asserted non-discriminatory

justifications. With respect to willingness to impose the

death penalty, for example, Judge Hett [*678] found

that “where there was any question raised by the juror

as to penalty, .. . there were four Whites and two

Blacks who were excused by the State.” Of the venire-

men who had previously been accused of crimes, Judge

Hett identified two white and one black veniremen, all

of whom were stricken.® In conclusion, Judge Hett

noted that, looking at the totality of the circumstances,

“I do not believe that there has been a showing, a

prima facie showing that the State exercised their chal-

6 The dissent expresses the view that, “rather than comparing

the excused African-Americans to the excused whites, . . . the

trial judge should have been comparing the excused African-

Americans to the whites who remained, for only through such

a comparison could the judge assess whether race played any

role in the State’s challenges.” Post at 41. While this observa-

tion is substantively cogent, we respectfully suggest that the

trial judge proceeded in the fashion that the dissent would

prescribe. As evidenced supra, Judge Hett’s underlying inquiry

reveals that he indeed considered the State’s justifications

with respect to the entire venire.

C12

lenges in a manner that showed racial discrimination.

They treated both the Blacks and the Whites who were

being excused in the same way. It is apparent in the

record that they used the same factors that I found as

to Whites, again as to Blacks.” Judge Hett therefore

concluded that Mahaffey had failed to establish a prima

facie case under Batson. [**15]

2. Discussion

Mahaffey argues that the lower courts erred in failing

to recognize that he established a prima facie case. Fur-

ther, he asserts that, notwithstanding the trial court’s

finding that he had not established an inference of

discrimination, the prosecution tendered its race-neu-

tral justifications to the court, and that these justifica-

tions are pretextual. Accordingly, Mahaffey asks us to

reverse the district court and grant him relief on his

Batson claim.

It is true that Judge Hett couched his decision in

the context of whether Mahaffey had established a

prima facie case. Moreover, the Illinois Supreme Court

grounded its analysis in the context of whether, con-

sidering “all relevant circumstances,” the trial court’s

prima facie case determination was against the mani-

fest weight of the evidence. See 539 N.E.2d at 1184.

The district court similarly rejected Mahaffey’s claim on

the basis that there was no reason to doubt the correct-

ness of Judge Hett’s factual finding regarding the exist-

ence of a prima facie case. See 978 F. Supp. at 781. It

is also true, however, as should be apparent from our

lengthy recitation of the Batson hearing proceedings,

that the State provided [**16] its race-neutral justifica-

i a

C13

tions for the use of its peremptory challenges.’ This fact

7 In both its brief to this Court and at oral argument, the

State contended that it never has offered race-neutral justifi-

cations for its peremptory challenges, solely because Mahaffey

never has established a prima facie case of discrimination.

This contention is clearly wrong factually, as Assistant State’s

Attorney Tsukono offered at the Batson hearing “reasons

which are apparent from the record which justify the State’s

challenges against these minority jurors.” Tsukono then dis-

cussed five of the seven stricken black veniremen individually,

discussing justifications such as a hesitancy regarding impo-

sition of a death sentence, or problems in following the court's

instructions. Further, he discussed justifications that applied

to more than one venireman, such as a prior knowledge of the

case, or a previous suspicion of criminal activity. These collec-

tive justifications applied to the two stricken black veniremen

that Tsukono had not discussed individually, in addition to the

five veniremen that he had previously discussed.

The State’s legal justification for its position is essentially

that, because it was not required under Batson to proffer race-

neutral justifications until Mahaffey established his prima

facie case, it necessarily could not have furnished those jus-

tifications before a prima facie case was established. This at-

tributes far more significance to Batson’s evidentiary burden-

shifting approach than it deserves. In Hernandez v. New York,

500 U.S. 352, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991), on

which the prosecution relies, the Supreme Court addressed a

case in which the prosecutor justified his peremptory challeng-

es before the trial court could decide whether a prima facie

case had been established. A plurality of the Court recognized

that “this departure from the normal course of proceeding

need not concern us. . . . ‘Where the [prosecutor] has done

everything that would be required of him if the [defendant]

had properly made out a prima facie case, whether the [de-

fendant| really did so is no longer relevant.’” Id. at 359

(quoting United States Postal Serv. Bd. of Governors Uv.

Aikens, 460 U.S. 711, 715, 75 L. Ed. 2d 403, 103 S. Ct. 1478

(1983)). This is because, as the Supreme Court has recognized

in the related context of Title VII's burden-shifting approach,

the prima facie case method was “never intended to be rigid,

(continued...)

C14

[(*679] was recognized by Mahaffey’s counsel at the

Batson hearing, see supra at 7-8, and by the Illinois

Supreme Court, see 539 N.E.2d at 1181 (“Finally, the

State gave its criteria for challenging the seven black

veniremen, asserting that the criteria were applied to

all veniremen, without regard to race.”).

[(**17] A plurality of the Supreme Court recognized in

Hernandez v. New York, 500 U.S. 352, 114 L. Ed. 2d

395, 111 S. Ct. 1859 (1991), that when a prosecutor

offers race-neutral explanations for peremptory chal-

lenges and the trial court rules on the ultimate ques-

tion of intentional discrimination, the issue of whether

the defendant had satisfied his prima facie burden

becomes moot. See id. at 359. This Circuit has followed

that approach. See McCain v. Gramley, 96 F.3d 288,

292 (7th Cir. 1996), cert. denied, 137 L. Ed. 2d 482, 117

” (...continued)

mechanized, or ritualistic. Rather, it is merely a sensible, or-

derly way to evaluate the evidence in light of common experi-

ence as it bears on the critical question of discrimination.” See

Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 57 L. Ed.

2d 957, 98 S. Ct. 2943 (1978).

Regardless of whether the State was required to provide its

race-neutral justifications at the Batson hearing, it certainly

did so. The State’s assertion that it did not provide those jus-

tifications simply because it was not required to do so lacks

any foundation in precedent or in fact. This error in analysis

is borne out by the district court’s recognition that “in many

cases, the prosecutor simply offers an explanation in response

to an objection which makes the prima facie case decision

unnecessary.” 978 F. Supp. at 781. Moreover, as Mahaffey

suggests, the implication that the State could develop new jus-

tifications at this late date, after the State has already pro-

vided justifications for its challenges, would serve to pervert

Batson’s burden-shifting framework.

C15

S. Ct. 1320 (1997); United States v. Cooper, 19 F.3d

1154, 1160-61 (7th Cir. 1994); see also Matthews v.

Evatt, 105 F.3d 907, 918 (4th Cir.) (following the same

approach), cert. denied, 118 S. Ct. 102, 139 L. Ed. 2d 57

(1997); Johnson v. Love, 40 F.3d 658, 663-64 (3d Cir.

1994) (same); United States v. Johnson, 941 F.2d 1102,

1108 (10th Cir. 1991) (same). This approach makes

good sense, in light of the fact that the ultimate ques-

tion always remains whether the opponent of the strike

has satisfied the burden of persuasion regarding pur-

poseful discrimination. See Purkett v. Elem, 514 U.S.

765, 768, 131 L. Ed. 2d 834, 115 S. Ct. 1769 (1995) (per

curiam); cf. St. Mary’s Honor Ctr. v. [**18] Hicks, 509

U.S. 502, 510-11, 125 L. Ed. 2d 407, 113 S. Ct. 2742

(1993).

While Mahaffey makes a strong argument that he

established a prima facie showing, we need not consider

this issue, as the prosecution bypassed this stage by

profiering its non-discriminatory reasons. It is evident

from the Batson hearing transcript that Judge Hett

considered the prosecution’s justifications and conclud-

ed, in light of the “totality of the circumstances,” that

the prosecution had not exercised its peremptory chal-

lenges in a racially discriminatory manner. Assistant

State’s Attorney Tsukono provided justifications, such

as an unwillingness to impose the death penalty, an

inability to follow instructions, or a prior run-in with

the police. Judge Hett conducted his own “detailed

analysis” of the voir dire and discussed the State’s

justifications in the context of its use of peremptory

challenges at voir dire. With respect to these justifica-

tions, Judge Hett found that the State’s dismissals

transcended racial lines. In conjunction with his knowl-

C16

edge and recollection of the voir dire (at which he had

expressed concern regarding the prosecution’s use of its

peremptories), as well as his prior interactions [**19]

with Tsukono as a prosecutor—the totality of the cir-

cumstances—Judge Hett concluded that Mahaffey had

not established purposeful discrimination. The fact that

the judge couched his finding in the context of a “prima

facie showing” is of no consequence. Evidence that is

insufficient to establish even an inference of discrimina-

tion is certainly not sufficient to meet the opponent of

the strike’s ultimate burden of persuasion in proving

purposeful discrimination. See McCain, 96 F.3d at 293.

The trial judge considered all of the evidence that was

available to him, along with his personal recollections

regarding the prosecution’s demeanor and approach at

the voir dire. Indeed, in light of the concerns he ex-

pressed at voir dire, the judge conducted a painstaking,

thoroughly detailed analysis, and only then concluded

that Mahaffey was unable to establish discriminatory

motive on the part of the prosecution.

[*680] A trial court’s decision on the ultimate ques-

tion of discriminatory intent constitutes a finding of

fact that we review with great deference on appeal.See

Hernandez, 500 U.S. at 364; id. at 372 (O’Connor, J.,

joined by Scalia, J., concurring in the judgment). On

federal habeas review, [**20] the factual findings of a

state trial court “shall be presumed to be correct.” 28

U.S.C. § 2254(d) (1994); see also Splunge v. Clark, 960

F.2d 705, 708 (7th Cir. 1992). Aside from the statutory

command of § 2254(d) in this context, deference to the

trial court on the issue of discriminatory intent makes

good sense, as the Court recognized in Hernandez:

C17

The finding largely will turn on evaluation of

credibility. In the typical peremptory challenge

inquiry, the decisive question will be whether coun-

sel’s race-neutral explanation for a peremptory chal-

lenge should be believed. There will seldom be

much evidence bearing on that issue, and the best

evidence often will be the demeanor of the attorney

who exercises the challenge. As with the state of

mind of a juror, evaluation of the prosecutor’s state

of mind based on demeanor and credibility lies

peculiarly within a trial judge’s province.

500 U.S. at 365 (quotations and citations omitted). Un-

like an appellate court, which must rely solely on a

paper record, the trial court is in a unique position to

review the credibility and demeanor of both the attor-

neys and the prospective jurors. See, e.g., United States

v. Cooper, 19 F.3d 1154, [**21] 1161 (7th Cir. 1994).

As we have discussed, Judge Hett considered in detail

th p>rosecution’s racé-neutral justifications, conducted

his own analysis regarding whether any of these justi-

fications were pretextual, and concluded that Mahaffey

had not shown racial discrimination. Moreover, the IIli-

nois Supreme Court fully considered the trial court’s

treatment of the Batson hearing and concluded: “The

record shows that the trial judge used his experience,

as well as his superior knowledge of local conditions

and prosecutors, in determining that the State’s per-

emptory challenges were not motivated by impermissi-

ble racial-group bias. We see no reason to disturb this

finding.” 539 N.E.2d at 1185. We are similarly unaware

of any reason to disturb the presumption of correctness

that we are statutorily required to accord the state

court’s factual finding. See, e.g., Pitsonbarger v. Gram-

ley, 141 F.3d 728, 734 (7th Cir. 1998), petition for cert.

C18

filed, U.S.L.W. (U.S. July 8, 1998) (No. 98-5153). We

therefore reject Mahaffey’s Batson claim.

B. Prosecutorial Misconduct at Mahaffey’s Sentencing

Hearing

1. Facts

Mahaffey testified in his own behalf at his sentencing

hearing. [**22] The prosecution’s questioning of Ma-

haffey revealed that, while he was awaiting trial, he

had participated in an armed escape from the Cook

County jail and had been apprehended two days later.

When asked whether he would attempt to escape again,

Mahaffey replied, “I don’t know.”

During his closing argument, Mahaffey’s counsel re-

peatedly requested the jury to resist imposing a death

sentence so that Mahaffey could instead spend the rest

of his life in prison.* Mahaffey’s counsel posed this re-

quest to the jury on five occasions in his closing argu-

ment, making comments such as: “That is why I am

here now, still pleading with you not to let Jerry free

but to live the rest of his life in the penitentiary, not as

a free man, as a prisoner, but still a man.” In response,

the prosecutor argued to the jury: When they tell you

that they will spend the rest of their lives in prison,

there is no guarantee. There is no guarantee, ladies

and gentlemen, not only because of what the law may

* Under Illinois law, a mandatory sentence of life imprison-

ment without the possibility of parole (or “natural life”) was

the only alternative to a death sentence in this case, because

Mahaffey had been convicted of murdering two people. See 730

Ill. Comp. Stat. 5/5-8-1(a).

LS ee a as a ,

C19

say but because of what you heard from the witness

stand. The prosecutor further told the jury that, if it

did not sentence the Mahaffey brothers to death, “You

will be letting them go because [*681] you will be

turning [**23] your back on the law and justice. They

will be let go.” Mahaffey requested that the trial judge

instruct the jury that if it did not sentence him to

death, the court was required by statute to sentence

him to a term of life without parole. The court, how-

ever, refused to give this instruction.

2. Discussion

Mahaffey appears to make two related due process

arguments in this context. We review these claims de

novo, the standard of review that prevailed before the

AEDPA became effective. See, e.g., Abrams v. Barnett,

121 F.3d 1036, 1038 (7th Cir. 1997). His first argument

relies upon the prosecutor’s comment that there was

“no guarantee” that Mahaffey would spend the rest of

his life in prison “not only because of what the law may

say,” [**24] along with his comment that, if the jury

failed to impose the death penalty, Mahaffey “will be

let go.” Mahaffey contends that these statements im-

plied that, by law, he could at some point in the future

be released or paroled from prison. Relying on our

opinion in Del Vecchio v. Illinois Department of Correc-

tions, 31 F.3d 1363, 1385 (7th Cir. 1994) (en banc), cert.

denied, 514 U.S. 1037, 131 L. Ed. 2d 290, 115 S. Ct.

1404 (1995), he argues that this implication “raises the

possible inference that there was a ‘careless or designed

pronouncement of sentence on a foundation [that was]

extensively and materially false.’” Id. (quoting Town-

C20

send v. Burke, 334 U.S. 736, 741, 92 L. Ed. 1690, 68 S.

Ct. 1252 (1948)).

The prosecution’s comment that “there is no guaran-

tee ... because of what the law may say,” is subject to

a number of differing interpretations. Both the Illinois

Supreme Court and the district court below construed

the prosecution’s comment to refer to Mahaffey’s pre-

vious escape from jail and his response that he did not

know whether he would attempt to escape again. See

978 F. Supp. at 778; 539 N.E.2d at 1192. Further, the

district court stated that the “argument that anything

[**25] less than the death penalty will be a letting go

of defendant was nothing more or less than a comment

that the death penalty was the only just and legally

correct sentence.” 978 F. Supp. at 778. This is a reason-

able interpretation of this disputed comment. Even if

we were to disregard these reasonable interpretations

of the prosecution’s comments and accept those asserted

by Mahaffey, as in Del Vecchio, “this would not be

enough to overturn the death sentence.” 31 F.3d at

1385. The prosecution’s contested statements were not

“extensively and materially false,” as the prosecution

never explicitly stated that Mahaffey could be eligible

under Illinois law for parole or release. See id. (quoting

Townsend, 334 U.S. at 741). Further, in light of the

evidence of Mahaffey’s prior escape and his equivocal

response at the sentencing hearing regarding future

escape attempts, the jury already was aware of the risk

that, at some point in the future, Mahaffey could be

loosed upon the public. It is accordingly “questionable

whether the jury relied on [the contested statements] in

its ‘pronouncement of sentence.’” See id. Because Ma-

haffey has not established that the challenged state-

C21

ments were inaccuracies [**26] of “constitutional mag-

nitude,” see United States v. Tucker, 404 U.S. 443, 447,

30 L. Ed. 2d 592, 92 S. Ct. 589 ( 1972), we reject this

formulation of his due process challenge.

Mahaffey’s second related argument incorporates into

the above analysis the fact that the trial court refused

to allow him—either through argument or an instruc-

tion—to explain to the jury that the only alternative to

a death sentence was a sentence of natural life. Ma-

haffey argues that the prosecution’s implication that

Mahaffey could ultimately be released from prison and

pose a threat to society, combined with Mahaffey’s in-

ability to inform the jury of the only statutory alter-

native, served to deprive him of due process. This argu-

ment evokes the rule of Simmons v. South Carolina,

512 U.S. 154, 129 L. Ed. 2d 133, 114 S. Ct. 2187 (1994).

Simmons held that when the prosecution argues to a

capital defendant’s sentencing jury that the defendant

represents a future danger, the defendant must be per-

mitted to inform the jury that he would not be eligible

for parole, so long as the only statutory alternative to

a death sentence is imprisonment without possibility of

parole. See id. at 169; id. at 177 [*682] (O’Connor, J.,

(**27] concurring in the judgment). Wisely, Mahaffey

does not explicitly rely on Simmons in his briefs to this

Court. That is because O’Dell v. Netherland, 521 U.S.

151, 138 L. Ed. 2d 351, 117 S. Ct. 1969, 1977-78 (1997),

held that Simmons announced a new rule within the

meaning of Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d

334, 109 S. Ct. 1060 (1989); our Circuit had previously

reached this same conclusion in Stewart v. Lane, 60

F.3d 296, 299-303 (7th Cir. 1995), cert. denied, 518

U.S. 1033 (1996). The fact that Mahaffey does not ex-

C22

plicitly rely on Simmons, however, does nothing to alter

Teague’s principle of the nonretroactivity of new rules.

Mahaffey’s conviction became final in 1990, when the

Supreme Court denied certiorari on direct review. He

therefore cannot benefit from the rule of Simmons,

which the Court announced in 1994. Thus, we reject

this variant of his due process claim as well.

C. Ineffective Assistance of Trial Counsel

Mahaffey argues that his trial counsel, Steven Deck-

er, provided ineffective assistance in two ways. First, he

argues that Decker failed to investigate and introduce

evidence at a pretrial suppression hearing regarding

Mahaffey’s confession. Second, he argues that [**28]

Decker failed to investigate and introduce potentially

mitigating evidence at his sentencing hearing. To pre-

vail on either of these claims, Mahaffey must satisfy

the familiar standards of Strickland v. Washington, 466

U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). This

test requires him to demonstrate both deficient per-

formance by his trial counsel and prejudice as a result

of the deficiency. See id. at 694.

In order to establish deficient performance, a defen-

dant must demonstrate that he has been denied his

Sixth Amendment right to a fair trial as the result of

the incompetence of defense counsel. See, e.g., Edd-

monds v. Peters, 93 F.3d 1307, 1313 (7th Cir. 1996),

cert. denied, 117 S. Ct. 1441, 137 L. Ed. 2d 548 (1997).

“This requires showing that counsel made errors so

serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.”

Strickland, 466 U.S. at 687. In this context, we do not

Ree a)

C23

second-guess defense strategies that were sound or

reasonable at the time of the trial simply because they

ultimately proved unsuccessful. Rather, “counsel must

contest the prosecution’s case and advance a good de-

fense; if that role has been fulfilled, a writ of habeas

(**29] corpus should not issue.” Holman v. Gilmore, 126

F.3d 876, 882 (7th Cir. 1997), cert. denied, 118 S. Ct.

1169, 140 L. Ed. 2d 179 (1998).

To establish prejudice under Strickland, a defendant

must satisfy a similarly high threshold. “{A] criminal

defendant alleging prejudice must show ‘that counsel’s

errors were so serious as to deprive the defendant of a

fair trial, a trial whose result is reliable.’” Lockhart v.

Fretwell, 506 U.S. 364, 369, 122 L. Ed. 2d 180, 113 S.

Ct. 838 (1993) (quoting Strickland, 466 U.S. at 687); see

also Eddmonds, 93 F.3d at 1313 (“Prejudice in the

Strickland sense refers to ‘unprofessional errors’ so

egregious ‘that the trial was rendered unfair and the

verdict rendered suspect.’”) (quoting Kimmelman v.

Morrison, 477 U.S. 365, 374, 91 L. Ed. 2d 305, 106 S.

Ct. 2574 (1986)). In the context of ineffective assistance

at the penalty phase of a capital case, we have noted

that prejudice requires a showing “that a reasonable

probability exists that, but for counsel’s substandard

performance, the sentencer ‘would have concluded that

the balance of aggravating and mitigating circumstanc-

es did not warrant death.’” Hall v. Washington, 106

F.3d 742, 749 (7th Cir.) (quoting Strickland, [**30] 466

U.S. at 695), cert. denied, 139 L. Ed. 2d 190, 118 S. Ct.

264 (1997). Reviewing Mahaffey’s claims de novo, we

conclude that neither of them can satisfy the above

standards.

C24

1. Ineffective Assistance at the Suppression Hearing

Mahaffey raised two arguments at his pretrial sup-

pression hearing. First, he argued that he did not un-

derstand the Miranda warnings that were given to him

by the police, and therefore he did not knowingly and

intelligently waive his right to counsel prior to confess-

ing. Second, he argued that he was physically coerced

into giving this [*683] confession because he was “bru-

talized” by the police. Mahaffey’s wife corroborated his

account. She stated that when police came to Mahaf-

fey’s apartment to arrest him she was ushered outside;

while outside, she heard her husband screaming and

the sounds of furniture being thrown around. In an at-

tempt to explain away the confession’s detailed recita-

tion of the facts surrounding the Pueschels’ murders,

Mahaffey contended that police spoon-fed him the de-

tails of the crime over a period of two hours following

his arrest. His twenty-page confession, Mahaffey tes-

tified, was the result of his memorizing information

that had been [**31] provided to him by the police.

Mahaffey now argues that Decker, his trial counsel,

provided ineffective assistance at the suppression hear-

ing by failing to have Mahaffey examined by a clinical

psychologist. Mahaffey’s counsel at the state post-con-

viction stage did have Mahaffey examined by a psychol-

ogist, Dr. Harry Gunn, who concluded that Mahaffey

was mildly retarded, could barely read, and most likely

could not have understood his Miranda rights when

they were given to him. Mahaffey asserts that there is

a reasonable probability that his confession would have

been suppressed if this testimony had been presented,

and that the outcome of his trial would have been dif-

ferent if the statement had been suppressed.

C25

Decker submitted responses to written interrogatories

in connection with an evidentiary hearing conducted in

the district court to address Mahaffey’s ineffective

assistance claims. In response to questions about the

advisability of presenting evidence of mental retarda-

tion at the suppression hearing, Decker stated that he

never “discerned anything whatsoever that [Mahaffey]

was unable to read.” Further, Decker thought that such

evidence would be questionable “given [Mahaffey’s]

(**32] written statements and my other knowledge as

to his abilities to understand and communicate.” Deck-

er’s impression of Mahaffey’s cognitive abilities is but-

tressed by the perception of others; Mahaffey’s sister

described him as someone who “presented himself as

though he had all this knowledge.” The district court

judge, who observed Mahaffey and heard him testify at

the evidentiary hearing held in connection with Ma-

haffey’s ineffective assistance claims, also commented

on the impression Mahaffey made: If the Jerry Ma-

haffey I saw in 1997 is like the Jerry Mahaffey that

Steven Decker saw in the mid-1980s, then Decker is not

to be faulted for failing to consider mental retardation.

Prior to his arrest Mahaffey was employed full time,

living with his family and reasonably capable of holding

his own under examination. 978 F. Supp. at 770. At the

time of the suppression hearing, there was no reason to

question Mahaffey’s mental abilities, and we cannot say

that Decker’s failure to pursue such psychological evi-

dence amounted to “gross incompetence.”

In the context of Mahaffey’s physical coercion argu-

ment, Mahaffey argues that Decker provided ineffective

assistance by not interviewing and presenting [**33]

the testimony of Mahaffey’s neighbor, Charles Pat-

C26

terson. Patterson would have testified that he heard

screaming, thuds, and other similar sounds coming

from Mahaffey’s apartment at the time of the arrest

that suggested that someone was being beaten. Oppos-

ing Mahaffey’s physical coercion argument, the prose-

cution presented testimony of Mahaffey’s arresting

police officers, all of whom denied any instances of bru-

tality. In addition, the two Assistant State’s Attorneys

who took Mahaffey’s confession testified that Mahaffey

had not complained of any brutality and that they saw

no physical evidence of mistreatment during their con-

tact with Mahaffey. The medical technician who pre-

pared Mahaffey’s intake report at the Cook County jail

similarly noted that there was no evidence or com-

plaints of physical brutality. Finally, the prosecution

presented a photograph taken of Mahaffey at the time

he gave his confession which, the district court below

noted, contains “no sign of the substantial injury he

claimed was inflicted by a blow to his nose.” 978 F.

Supp. at 776.

The trial court considered this testimony, along with

the testimony given by Mahaffey and his wife, and con-

cluded that “the great [**34] weight of the evidence”

refuted Mahaffey’s [*684] claims of brutality and that

“overwhelming evidence” refuted Mahaffey’s Miranda

violation claim. In this context, we do not believe that

there is a reasonable probability that the result of the

suppression hearing would have been different if Ma-

haffey’s neighbor Charles Patterson had been called to

testify. See, e.g., Wright v. Gramley, 125 F.3d 1038,

1041 (7th Cir. 1997). Although Patterson heard sounds

coming from Mahaffey’s apartment, he states that he

never saw Mahaffey at the time of his arrest. The trial

ewe

C27

judge found the testimony of the prosecution’s witness-

es credible, and it is unlikely that Patterson, without

having seen physical evidence that Mahaffey was bru-

talized, would have altered the court’s analysis. Thus,

we conclude that Mahaffey is unable to demonstrate

prejudice under Strickland for his trial counsel’s failure

to present Patterson’s testimony.

2. Ineffective Assistance at the Sentencing Hearing

As mandated by the Constitution, see Lockett v. Ohio,

438 U.S. 586, 604, 57 L. Ed. 2d 973, 98 S. Ct. 2954

(1978), the Illinois death penalty statute requires the

sentencer to consider all mitigating factors relevant to

imposition [**35] of a sentence of death. See III. Comp.

Stat. 5/9-1(c). Accordingly, competent representation

demands that defense counsel present an argument

that focuses the attention of the jury on any mitigating

factors. See, e.g., Kubat v. Thieret, 867 F.2d 351, 369

(7th Cir.), cert. denied, 493 U.S. (1989). Like other stra-

tegic decisions, a defense counsel’s reasonable choice to

omit certain mitigating evidence in favor of alternative

arguments does not render his assistance ineffective.

See id. at 368. In the instant case, Mahaffey’s trial

counsel adopted a strategy of pleading for the jury’s

mercy at the sentencing hearing. As a general matter,

we have recognized that “(a] simple plea for mercy may

be a valid choice, if that plea focuses on the particular

defendant and the circumstances of the particular

offense.” Hall v. Washington, 106 F.3d 742, 750 (7th

Cir.), cert. denied, 139 L. Ed. 2d 190, 118 S. Ct. 264

(1997); see also Eddmonds v. Peters, 93 F.3d 1307, 1322

(7th Cir. 1996), cert. denied, 117 S. Ct. 1441, 137 L. Ed.

2d 548 (1997).

C28

The mitigation evidence presented at Mahaffey’s sen-

tencing hearing consisted of the testimony of three of

his relatives—his wife, his mother, and his sister—as

well as the [**36] testimony of Mahaffey himself. Ma-

haffey’s mother related the difficult circumstances of

her son’s upbringing in a “rough” and “violent” neigh-

borhood, and she told the jury of Mahaffey’s loving

relationship with his family. She further said that her

son’s death would affect her “very much... because I

am a mother, and I love him deeply, and his presence

would be missed.” Mahaffey’s wife testified similarly

and told the jury of his close relationship with her and

their children. Mahaffey testified and told the jury that

his family would miss him if he were sentenced to

death, and he discussed his desire to live: “I’m a human

being. I have feelings. I have a heart. I desire to live.”

Mahaffey’s counsel presented a coherent closing argu-

ment to the jury, discussing, among other things, the

unplanned manner in which the Mahaffey brothers had

arrived at the Pueschels’ apartment and contrasting

their crimes with a murder-for-hire. Decker also dis-

cussed the nature of punishment and argued that the

jury should act mercifully and not be responsible for an

individual’s death. In addition, he focused the jury on

the mitigation evidence that had been presented, stat-

ing that Mahaffey “has a family, [**37] he has a wife

who loves him and children who depend on him, chil-

dren who want him to remain alive in the penitentiary,

a wife who wants him to remain alive in the peniten-

tiary.”

When considered in the context of the other available

strategic alternatives, which we discuss infra, we do not

believe that Decker’s performance at sentencing fell

wi aie ne

i Peres ae , go sagik i a or eee

C29

below the level of reasonable competence. This case is

not like Hall, in which the defense counsel’s closing

argument to the sentencing judge “relied upon sweeping

and largely irrelevant appeals to the judge’s personal

beliefs and religious principles.” 106 F.3d at 750. Here,

Decker’s presentation focused specifically on Mahaffey’s

situation and the impact that a sentence of death would

have on Mahaffey’s family. In addition, our holding

(*685] in Hall was not based solely upon “counsel’s

failure in his closing argument to offer any reason other

than blatant disregard of Illinois law for sparing Hall’s

life,” id. at 749, a shortcoming which is not implicated

in the instant case in any event. We also premised our

holding in Hall upon the “total failure” of Hall’s attor-

neys “to contact Hall in preparation for the sentencing

hearing and their consequent [**38] failure to present

his mitigation witnesses.” Id. In this context, Mahaffey

contends that Decker failed to prepare competently for

the sentencing hearing, the issue to which we now turn.

Mahaffey argues that Decker provided ineffective as-

sistance because he failed to obtain Mahaffey’s school

records and to investigate his mental health so that

this evidence could be used in mitigation at the sen-

tencing hearing. Decker’s responses to the interroga-

tories posed by Mahaffey in connection with the evi-

dentiary hearing stated that Decker was aware that

Mahaffey “didn’t have a stellar school record” and had

only completed the eighth grade. This awareness,

Mahaffey contends, should have compelled Decker to

obtain the school records in the hope of learning more

about Mahaffey’s mental state. Mahaffey’s post-con-

viction counsel obtained these school records, which

indicated that Mahaffey had an IQ of 64 when he was

C30

ten years old, was transferred to a special education

school when he was in the sixth grade, and had serious

difficulties reading and spelling. Mahaffey argues that

the information contained in these records would have

compelled Decker to conduct further investigation into

his mental [**39] health. Cf. Stewart v. Gramley, 74

F.3d 132, 135 (7th Cir.) (recognizing that it constitutes

ineffective assistance to fail to conduct further inves-

tigation into a defendant’s mental status when it is

apparent from readily available evidence that the

defendant has “some mental or other condition that will

repay further investigation”), cert. denied, 136 L. Ed.

2d 65, 117 S. Ct. 113 (1996).

Further investigation, Mahaffey contends, would have

included a psychological evaluation, such as the one

ultimately conducted by Dr. Gunn, that would have

revealed that Mahaffey is mentally retarded and suffers

from “borderline personality disorder.” Mahaffey argues

that if this mitigating evidence had been introduced,

there is a reasonable probability that at least one of the

twelve jurors who sentenced him would have refused to

impose a death sentence. See Emerson v. Gramley, 91

F.3d 898, 907 (7th Cir. 1996), cert. denied, 117 S. Ct.

1260, 137 L. Ed. 2d 339 (1997). He therefore asserts

that Decker provided ineffective assistance in failing to

unearth this evidence and present it to the jury. See

Hall, 106 F.3d at 749-50 (“Where it is apparent from

evidence concerning the crime itself, from conversation

with [**40] the defendant, or from other readily avail-

able sources of information, that the defendant has

some mental or other condition that would likely qual-

ify as a mitigating factor, the failure to investigate will

be ineffective assistance.”).

C31

The Constitution requires defense counsel in a capital

case to conduct a reasonable investigation into potential

mitigating factors. See, e.g., Strickland, 466 U.S. at

691; Stewart, 74 F.3d at 135. A “reasonable investiga-

tion” does not mandate a “scorch-the-earth strategy,”

see Hall, 106 F.3d at 749, a requirement that would fail

to consider the limited time and resources that defense

lawyers have in preparing for a sentencing hearing. See

Stewart, 74 F.3d at 135. Rather, the contours of a

reasonable investigation are dictated by the circum-

stances of each case, including the facts of the crime,

conversations with the defendant and others familiar

with him, and other readily available sources of in-

formation, such as trial testimony. See, e.g., Hall, 106

F.3d at 749-50; Stewart, 74 F.3d at 135. While this

evidence will in some cases indicate that further in-

vestigation would be beneficial, “in other cases, where

these indications are, lacking, counsel [**41] may ‘rea-

sonably surmise from his conversations with [the de-

fendant] that character and psychological evidence

would be of little help.’” Id. (quoting Strickland, 466

U.S. at 698) (alteration in original). In this context, we

recently have noted that “it is reasonable for a lawyer

to place a certain reliance on his client, so that if the

client and his family and friends throw the lawyer off

the scent, . . . the lawyer cannot be faulted for failing

to go [*686] down the path thus closed off.” Thomas v.

Gilmore, 144 F.3d 513, 515 (7th Cir. 1998).

Mahaffey’s argument can be interpreted as claiming

ineffective assistance on two distinct bases. The first

asks us to establish a per se rule that a capital defen-

dant’s lawyer must always obtain available institution-

al records, such as school records, that might give rise

C32

to evidence of mitigating factors. We addressed this

argument recently in Thomas, where the petitioner

argued that his defense lawyer provided ineffective

assistance by failing to subpoena his prison and school

records and submit them to a psychiatrist for evalu-

ation. Cognizant of the prevailing view that a deter-

mination of ineffectiveness typically depends on the

circumstances [**42] of each case, see id. at 516, we

recognized that such a per se rule would constitute a

new rule within the meaning of Teague v. Lane, 489

U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989).

Because we may not grant relief in habeas corpus pro-

ceedings on the basis of a new rule, see id., we declined

to decide whether the failure to subpoena institutional

records was per se ineffective. See Thomas, 144 F.3d at

516. The same considerations apply in the instant case,

and we are unable to grant relief upon Mahaffey’s con-

tention that a defense counsel’s failure to obtain school

records necessarily renders his assistance incompetent.

Although the State did not raise Teague, we may in-

voke its rule even when the State has waived it. See,

e.g., Thomas, 144 F.3d at 516; Winsett v. Washington,

130 F.3d 269, 274 (7th Cir. 1997).

This leaves Mahaffey’s contention that, given the cir-

cumstances of this particular case, Decker’s failure to

subpoena the school records fell below professional

norms. In this context, Mahaffey relies upon the evi-

dence that was apparent to Decker: Mahaffey “didn’t

have a stellar school record,” he had only completed the

eighth grade, and he contended that he was unable

{**43] to understand his Miranda warnings (a conten-

tion that Decker advanced at the suppression hearing).

Mahaffey argues that this evidence should have led

C33

Decker to further investigate Mahaffey’s mental state.

See, e.g., Hall, 106 F.3d at 749-50. As part of the

district court’s hearing on Mahaffey’s ineffectiveness

claims, Decker responded to interrogatories regarding

his preparation for the sentencing hearing. Decker

stated that he asked both Mahaffey and his mother

about Mahaffey’s mental health history, and that both

of them denied that Mahaffey had any mental prob-

lems.’ More importantly, Decker’s extensive conver-

sations and contacts with Mahaffey led him to believe

that investigation into Mahaffey’s mental state was

unwarranted. Decker testified that throughout the trial,

he discussed strategy with Mahaffey and showed him

police reports and documents, none of which Mahaffey

had trouble understanding. Decker also considered

Mahaffey’s lengthy written confession, which Mahaffey

had read and corrected. Based upon these factors, Deck-

er stated that he had.no indication that further investi-

gation into Mahaffey’s mental condition would have

produced any mitigating evidence. This assessment

(**44] of Mahaffey is consistent with that made by

Mahaffey’s own sister, who stated that “J erry presented

himself as though he had all this knowledge.”

We must also consider in this context the factual find-

ings of the district court judge, who had an opportunity

* While the extent to which Decker prepared Mahaffey’s

mother for the sentencing hearing was disputed in the district

court, the district judge credited Decker’s testimony that he

prepared Mahaffey’s mother to testify. See 978 F. Supp. at

770. We must defer to such findings of fact made by the dis-

trict court unless they are clearly erroneous. See, e.g., Griffin

v. Camp, 40 F.3d 170, 172 (7th Cir. 1994). In any event,

Mahaffey does not challenge on appeal the truthfulness of this

aspect of Decker’s account.

C34

to observe and listen to Mahaffey at the evidentiary

hearing. As we have discussed, in assessing Mahaffey’s

testimony, the district judge found that “if the Jerry

Mahaffey I saw in 1997 is like the Jerry Mahaffey that

Steven Decker saw in the mid-1980s, [**45] then Deck-

er is not to be faulted for failing to consider mental re-

tardation.” 978 F. Supp. at 770. We must accept the

district court’s finding in this regard, as Mahaffey has

presented us with no evidence to indicate that it is

erroneous. As the district court found, “nothing in his

client’s demeanor [*687] or actions showed Steven

Decker that his client had a mental condition that

would mitigate sentence.” 978 F. Supp. at 770. These

observations were corroborated by Decker’s discussions

with Mahaffey’s family, which similarly gave Decker no

reason to believe that further investigation would prove

fruitful.

We therefore conclude that Decker engaged in a rea-

sonable investigation into Mahaffey’s mental state, as

there was nothing apparent to indicate to Decker that

further investigation was warranted. The mere fact of

Mahaffey’s poor scholastic record, which in many cases

can be attributed to factors other than mental or psy-

chological difficulties, is insufficient to require an all-

out campaign to uncover mitigating psychological evi-

dence. Decker did consider his first-hand impressions of

Mahaffey, along with his conversations with Mahaffey’s

family members, and came upon a dead end. Cf.

Thomas, [**46] 144 F.3d at 515.

In this way, this case is quite unlike the situation in

either Hall, supra at 23, or Eddmonds v. Peters, 93

F.3d 1307, 1323 (7th Cir. 1996), cert. denied, 117 S. Ct.

1441, 137 L. Ed. 2d 548 (1997), in which a majority of

aaa

the Court concluded that defense counsel performed in-

competently by failing to investigate mitigating psy-

chological evidence. In Eddmonds, there was a discov-

ery file in the defense counsel’s possession that con-

tained substantial indications of mental illness, such

that “even a cursory review of Eddmonds’ file would

have revealed long-standing, complex, and often severe

mental problems.” Jd. at 1324, There is no comparable

evidence of mental retardation or illness in this case.

Thus, we are unable to characterize Decker’s failure to

uncover more evidence than he did as falling below the

minimum standards of professional competence re-

quired by the Sixth Amendment. Because Mahaffey is

unable to satisfy the first prong of Strickland, see 466

U.S. at 694, we reject this ineffective assistance claim.”

'° The district court, after finding that Decker had performed

competently with respect to the sentencing hearing, nonethe-

less went on to consider whether Mahaffey could establish

prejudice under Strickland. See 978 F. Supp. at 771. The court

found that Mahaffey could not establish the required element

of prejudice in any event. See id. at 771-74. Because we con-

clude that Decker’s performance was not constitutionally defi-

cient, we need not consider the prejudice element. See Strick-

land, 466 U.S. at 697. However, we note that, while we have

in some cases held that a failure to obtain and present miti-

gating psychological evidence at sentencing was prejudicial,

see, e.g., Emerson v. Gramley, 91 F.3d 898, 907 (7th Cir.

1996), cert. denied, 117 S. Ct. 1260, 137 L. Ed. 2d 339 (1997),

we have concluded in other cases that such a failure in perfor-

mance was not prejudicial. See, e.g., Thomas, 144 F.3d at 516-

18; Eddmonds, 93 F.3d at 1319-22. A determination of preju-

dice will depend on the facts of each case, along with the

strength of the mitigation evidence that could have been in-

troduced. Cf. Thomas, 144 F.3d at 518.

C36

(**47] III.

Mahaffey has not established constitutional error

with respect to either his conviction or sentence. We

therefore affirm the judgment of the district court.

DISSENT BY: ROVNER

DISSENT: ROVNER, Circuit Judge, dissenting. In se-

lecting the jury that would decide Jerry Mahaffey’s

fate—whether he was guilty of murdering Jo Ellen and

Dean Pueschel, and whether he should be put to death

for those murders—two prosecutors representing the

State of Illinois exercised peremptory challenges to

exclude the only seven African-American members of

the jury venire. Mahaffey thus was convicted and ulti-

mately sentenced to death by a jury comprised of eleven

whites and one Asian-American. Fortunately for Mahaf-

fey, the United States Supreme Court decided Batson

v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct.

1712 (1986), while his direct appeal to the Illinois Su-

preme Court was pending. That court thus remanded

Mahaffey’s case, ordering the trial court to conduct a

hearing and to determine whether jury selection here

complied with the constitutional mandate of the Batson

decision. After conducting that hearing, the state trial

judge concluded that Mahaffey had failed to establish

a prima facie (**48] case of discrimination under Bat-

son. The Illinois Supreme Court affirmed on that basis,

and [*688] the federal district court subsequently de-

clined to issue a writ of habeas corpus. In finding no

Batson violation in the selection of Mahaffey’s jury,

both the state supreme court and the federal district

C37

court effectively deferred to the trial court’s conclusion

that Mahaffey had failed to establish a prima facie

case. See People v. Mahaffey, 128 Ill. 2d 388, 539 N.E.

2d 1172, 1184-85, 132 Ill. Dec. 366 (Ill. 1989), cert. de-

nied, 497 U.S. 1031 (1990); United States ex rel. Ma-

haffey v. Peters, 978 F. Supp. 762, 781-82 (N_D. Ill.

1997).

Today’s majority is understandably uncomfortable

with that conclusion, however, for it essentially means

that an inference of discrimination, and therefore a

prima facie case under Batson, does not arise even

where the State has exercised peremptory challenges

against all seven African-American venire persons in a

racially-sensitive double murder trial involving an

African-American defendant and white victims. Ac-

knowledging that Mahaffey has presented a “strong

argument” on the prima facie case (ante at 12), the

majority opts to bypass that aspect of the Batson [**49]

inquiry and to proceed directly to the ultimate issue of

discrimination. Such a course is appropriate, my col-

leagues believe, because at the Batson hearing ordered

by the Illinois Supreme Court, the State came forward

with its reasons for striking the seven African-Ameri-

can jurors, and the trial judge explicitly found those

reasons valid and nonpretextual. Id. at 14. In my view,

that conclusion simply is not supported by the record of

the Batson hearing. It also is inconsistent with the

decisions issued in this case by the Illinois Supreme

Court, the federal district court, and the state trial

judge who presided at the Batson hearing. The majority

reaches such a conclusion, moreover, in the face of the

State’s own insistence that it has never articulated its

reasons for striking the seven African-American jurors.

C38

As I will demonstrate below, the majority’s analysis

of the Batson issue relies on a mistaken premise—that

the actual reasons for the challenged strikes were be-

fore the state trial judge and that those reasons were

considered and accepted by him. To the contrary, the

record demonstrates that the State never offered its

reasons for striking the African-American jurors, as

{**50] the State itself concedes, and those reasons thus

were never considered by the state trial judge or by any

state or federal court that subsequently has reviewed

his work. The Illinois courts and the prosecutors who

have been so intimately involved in this case for so long

simply are not mistaken as to what occurred at the

Batson hearing. It is rather the majority of this court,

almost eleven years later, that I believe misreads the

record in order to avoid the obvious conclusion that a

remand on the Batson issue is required.

In my view, and I venture to say in the view even of

my colleagues in the majority, Jerry Mahaffey plainly

established a prima facie case of discrimination at the

Batson hearing in November 1987. And because a

prima facie case was shown, the State must now be

required to articulate to the district court its race-

neutral reasons for striking all seven African-Americans

from Mahaffey’s jury. At that point, the district court

must decide for the first time in the extended history of

this case whether the reasons offered for the seven

strikes are valid, or whether those reasons are instead

a pretext for discrimination. Jerry Mahaffey is entitled

to at least that much [**51] before the State of Illinois

carries out his death sentence. The United States Con-

stitution, as interpreted by the Supreme Court in Bat-

son, requires no less. Because a majority of this court

C39

is unwilling to give Mahaffey even that, I must respect-

fully dissent.

The fundamental mistake I find in the majority’s

opinion is its suggestion that the prosecutors actually

offered their reasons at the Batson hearing for striking

the seven African-American jurors. They plainly did

not, as is clear from every other court’s discussion of

the issue, and from the State’s own brief in this appeal.

See Respondent’s Br. at 13 (“The prosecution never

tendered ‘race-neutral’ reasons at trial, nor during any

appellate proceeding, state or federal.”).' [*689] What

the State did offer at the Batson hearing, and what the

' The Respondent’s brief further emphasized the point as fol-

lows: The District Court itself made quite clear in its opinion,

any explanations which had been given by the prosecution

were “directed to explaining the pattern of challenges” used

during the jury selection, rather than attempting to proffer

raceneutral reasons to the court, which would have been pre-

mature due to petitioner’s obvious failure to establish a prima

facie case of discrimination. In fact, since the time of the orig-

inal voir dire, the prosecutors have steadfastly refused to

tender “race-neutral” explanations for their challenges until

petitioner had demonstrated a prima facie case of discrimina-

tion. Even the Illinois Supreme Court found any “apparent ex-

planations” for the State’s challenges were “relevant circum-

stances which a trial court may consider when determining a

prima facie case of discrimination.” Mahaffey, 539 N.E.2d at

1184. Id. (additional citations omitted). Counsel for the State

then reiterated the point at oral argument, assuring us that

the prosecutors have never in the long history of this case of-

fered their true reasons for striking the seven African-Ameri-

can jurors. In my view, the majority's explanation for the

State’s position simply does not comport with the record here.

See ante at 10-11 n.7. [**54]

C40

majority now misconstrues as the State’s race-neutral

reasons for the strikes, were possible explanations for

the challenges that were apparent in the record of the

voir dire proceeding itself. The State argued to the trial

judge at the Batson hearing that such possible explana-

tions, if apparent from the record, could be considered

at the prima facie case stage even before the State was

{**52] required to articulate its true reason for any

individual strike. According to the State, those possible

explanations were relevant to whether the trial judge

should draw an inference of discrimination for purposes

of the prima facie case. See Batson Hearing Tr. at 12

(prosecutor argues that “in determining whether or not

the defendant has made out a prima facie case, the

trial judge may consider any apparent reasons for the

prosecutor’s challenges against minority jurors.”).” Yet

those “apparent reasons” are to be distinguished from

the State’s actual reasons, which, as the State pointed

out almost eleven years ago at the hearing and now

confirms in its brief to this court, have never been

revealed. See id. at 25 (“Since the defendants have not

even made a prima facie case on this issue, there is no

further need for any . . . inquiry into why we exercised

* Later in the hearing, the prosecutor explained that: In cer-

tain cases the justifications for some of the State’s per-

emptories will not be apparent from the transcript of jury

selection. However, it has been held in such cases that the de-

fendants did fail to make out a prima facie case of discrimi-

nation where the transcripts show that most but not all of the

State’s peremptory challenges were clearly justified by facts

which were apparent in the record. Id. at 14-15. The State

thus effectively argued at the Batson hearing that it was not

required to reveal the true reasons for the strikes if possible

explanations that were apparent from the record served to

negate the existence of a prima facie case.

C41

our challenges as we did.”). Thus, when the prosecutor

proceeded to address the characteristics of five of the

seven African-American jurors individually, he was not

purporting to reveal the State’s true reasons for strik-

ing those jurors; he was instead offering “reasons which

are apparent from the record which justify the State’s

(**53] challenges against these minority jurors.” Id. at

20. In the State’s own view, then, its prosecutor never

crossed the line into the pretext stage, as the majority

now finds, because the prosecutor focused his entire

argument on the requirements of the prima facie case.

Indeed, the prosecutor concluded his argument at the

Batson hearing by requesting that the trial judge find

no prima facie case in the circumstances here. Id. at

26.°

As the majority [**55] points out, in responding to the

prosecutor’s argument, Mahaffey’s counsel intimated

that the State may have done more than merely argue

the absence of a prima facie case. Yet after suggesting

that the prosecutor may have crossed the line into the

explanation stage, defense counsel observed that “if this

is done on the assumption that... a prima facie case

[has] been presented, then I think that is a significant

concession. Otherwise, much of what he said deserves

review after your Honor has found [*690] a prima facie

case.” Id. at 26-27. Later in the hearing, defense coun-

* In the district court, Judge Zagel took the same view of the

prosecutor's arguments at the Batson hearing: “In this case,

the prosecutors elected to dispute the showing of the prima

facie case though they did explicitly deny basing challenges on

race. The detailed explanation they did offer was directed to

explaining the pattern of challenges.” Mahaffey, 978 F. Supp.

at 781.

C42

sel reiterated that the issue before the court was

whether a prima facie case had been shown, and coun-

sel twice stated that if a prima facie case were found,

Mahaffey would then address in more detail the possi-

ble explanations the prosecutor had offered. See id. at

28 (“As far as the specifics and the details, we will

respond if your Honor finds a prima facie case.”) & id.

at 36 (“And we would wish to respond to each of those

grounds if your Honor finds that there was a prima

facie case.”).* And counsel concluded his argument by

asking the trial judge to find that Mahaffey had

satisfied his burden under Batson of [**56] establishing

a prima facie case of discrimination: The matter for

your Honor at this time seems to be whether the fact

that all Blacks were excluded by the State on peremp-

tory challenge and there were no Blacks on the jury to

try Black defendants, that we have at least established

a prima facie case entitling us to a ruling by your

Honor and an evaluation and consideration on the

grounds and a decision. . . . So we would ask your

* According to my colleagues in the majority, Mahaffey’s coun-

sel “argued that at least some of the prosecution’s asserted

justifications were pretextual.” Ante at 8. With the utmost

respect, however, I again must disagree. It is clear from the

transcript that defense counsel, like the prosecutor, argued

only what the existing record revealed about the stricken

jurors. Defense counsel asserted that the possible explanations

pointed out by the prosecutor did not negate the existence of

a prima facie case because white jurors with similar character-

istics and opinions had been permitted to remain on the jury

while African-American jurors with those characteristics and

opinions had been excluded. Id. at 29-36. As I noted in the

text, moreover, counsel twice told the trial judge that he would

respond further on the pretext question if a prima facie case

were found.

PS RNS Lae he ae OE, OO Ae am eee | Feu ea Bea kee

C43

Honor at this time to conclude there has been a show-

ing of a prima facie case and therefore the State must

demonstrate there has been neutral grounds for remov-

ing the jurors. Id. at 36.

[**57] Having heard the arguments of both sides on

the issue of the prima facie case, the state trial judge

proceeded to address that issue alone. The court thus

made no mention of defense counsel’s request that he

be given the opportunity to respond in more detail to

any race-neutral reasons offered by the State if a prima

facie case were found. J udge Hett began his analysis by

reciting the elements of a prima facie case under

Batson, making it abundantly clear that he was consid-

ering only that aspect of the Batson equation. As the

majority points out, Judge Hett then provided detailed

observations on the jury voir dire, which led him to

conclude that “similar types of people were also on the

jury. . . . All of the: people who were excused were

similar to the people who were chosen. The Whites who

were excused were similar to the Blacks who were

excused.” Id. at 51. Contrary to my colleagues’ asser-

tion, however, Judge Hett never suggested that the

prosecutor had offered the State’s race-neutral reasons

for the strikes, nor did he ever indicate that he was

assessing whether those reasons were a pretext for

discrimination. Cf. ante at 14 (“Judge Hett considered

in detail the prosecution’s [**58] race-neutral justifica-

tions, conducted his own analysis regarding whether

any of these justifications were pretextual, and con-

cluded that Mahaffey had not shown racial discrimi-

nation.”). Rather, the judge concluded from the pattern

of strikes and the information revealed by the record of

the jury voir dire that an inference of discrimination

C44

should not be drawn in these circumstances: Looking at

the totality of the circumstances I do not believe that

there has been a showing, a prima facie showing that

the State exercised [its] challenges in a manner that

showed racial discrimination. They treated both the

Blacks and the Whites who were being excused in the

same way. It is apparent in the record they used the

same factors that I found as to Whites, again as to

Blacks. Batson Hearing Tr. at 54. Judge Hett therefore

concluded that Mahaffey had failed to carry his burden

of establishing a prima facie case under Batson. Id. at

55.

On appeal, the Illinois Supreme Court affirmed Judge

Hett’s conclusion regarding the absence of a prima facie

case, and nowhere did that court suggest, as my col-

leagues now [*691] conclude, that the trial judge had

made a finding on the ultimate issue of discrimination.

i**59] In fact, the state supreme court expressly re-

jected Mahaffey’s assertion that the trial judge had

erred when he relied on the “apparent explanations” for

the strikes offered by the State at the prima facie case

stage. In so doing, Illinois’ highest court read the record

of the Batson hearing much differently than my col-

leagues do today. The Illinois Supreme Court said that

“rather than relying on ‘apparent explanations’ for the

State’s challenges, the trial court merely reviewed the

characteristics of the stricken jurors to determine their

heterogeneity. This is a relevant circumstance which a

trial court may consider when determining a prima

facie case of discrimination.” People v. Mahaffey, 539

N.E.2d at 1184 (citing People v. Evans, 125 Ill. 2d 50,

530 N.E.2d 1360, 1365, 125 Ill. Dec. 790 (Ill. 1988),

cert. denied, 490 U.S. 1113 (Ill. 1989)). The Illinois Su-

C45

preme Court thus considered and rejected the very

premise of today’s majority opinion—that the State had

crossed the line at the prima facie case stage by offer-

ing its race-neutral explanations for the strikes, and

that the trial judge had found those explanations valid

and nonpretextual. See ante at 14.

In articulating a contrary [**60] view, my colleagues

inform us that the state trial judge’s finding on the

ultimate issue of discrimination is entitled to a pre-

sumption of correctness (ante at 13-14), which is cer-

tainly true had such an ultimate finding actually been

made. As I have explained, however, no such finding

ever was made by the Illinois courts in this case.” |

therefore find it more than a bit ironic that the major-

* Because no such finding was made here, this case cannot be

likened to Hernandez v' New York, 500 U.S. 352, 359, 114 L.

Ed. 2d 395, 111 S. Ct. 1859 (1991), where a plurality of the

Supreme Court found the prima facie case issue moot once the

prosecutor had offered his race-neutral reasons for juror chal-

lenges. Cf. ante at 11-12. In that case, the prosecutor immedi-

ately volunteered his race-neutral reasons for striking two pro-

spective jurors after a Batson objection was raised. Hernandez,

500 U.S. at 356. Indeed, the prosecutor specifically stated that

he had excused the two Hispanic jurors because he was uncer-

tain that they would accept the official interpreter’s transla-

tion of testimony that would be given in Spanish. Id. There

was thus no doubt in Hernandez that the prosecutor had of-

fered his race-neutral explanations, and every court to con-

sider the case recognized that he had done so. Id. at 358. My

two colleagues in the majority here, by contrast, are the only

two judges in the extended history of this case who have con-

cluded that race-neutral explanations were provided and that

a finding was made on the ultimate issue of discrimination.

Hernandez, in short, does not support the majority's decision

to bypass Batson’s prima facie case stage in the circumstances

here.

C46

ity would invoke such a presumption here, where it

essentially finds that the Illinois courts were them-

selves confused about which aspect of the three-part

Batson equation they actually were dealing with. How

can the federal courts possibly afford a presumption of

correctness to a state court finding that the state courts

themselves did not purport to make? As I read the

record, the state courts only found that Mahaffey had

failed to make out a prima facie case of discrimination,

and I do not think we are at liberty almost eleven years

later to recast the issue simply because we may find

the state courts’ conclusion indefensible on this record.

[**61]

IT.

Having demonstrated that the only issue decided by

the Illinois courts, and therefore the only issue properly

before us today, was whether Mahaffey established a

prima facie case of discrimination, I must conclude that

he did. Unlike the ultimate issue of discriminatory in-

tent, which as a factual question is entitled to defer-

ential review (see Batson, 476 U.S. at 98 n.21), the pre-

liminary question of whether a prima facie case has

been shown presents a mixed question of law and fact

(see, e.g., United States v. Bergodere, 40 F.3d 512, 516

(Ist Cir. 1994), cert. denied, 514 U.S. 1055, 131 L. Ed.

2d 318, 115 S. Ct. 1439 (1995); United States v. Alva-

rado, 891 F.2d 439, 443 (2d Cir. 1989), vacated on other

grounds, 497 U.S. 543 (1990)), which I submit the ap-

pellate courts should review de novo. Although some of

our sister circuits have utilized a clearly erroneous

standard in their review of that question (see Bergo-

C47

dere, 40 F.3d at 516 (citing cases)), I believe that the

Supreme Court’s recent decision (*692] in Ornelas v.

United States, 517 U.S. 690, 134 L. Ed. 2d 911, 116 S.

Ct. 1657 (1996), points in the direction of de novo

review. The question of whether an inference of dis-

crimination [**62] may be drawn from a set of undis-

puted facts relating to the racial makeup of the jury

venire and the prosecutor’s exercise of peremptory

challenges is, like the probable cause question before

the Court in Ornelas, one over which the appellate

courts should exercise a degree of control that a clear

error standard would not afford. Jd. at 697. As in

Ornelas, factual scenarios will recur in this context,

and de novo review would allow for a measure of con-

sistency in the treatment of similar factual settings,

rather than permitting different trial judges to reach

inconsistent conclusions about the prima facie case on

the same or similar facts. Id. at 697-98; cf. Mahaffey,

978 F. Supp. at 781 (“This is not to say that Judge Hett

could not have decided the question the other way, but

on this record, given his participation in the jury selec-

tion, his judgment that there was no prima facie case

was permissible.”). Ultimately, however, I find the

standard of review question largely beside the point, for

even if a more deferential standard were applied, I

would have to conclude that Judge Hett clearly erred in

finding that no inference of discrimination would arise

from the facts and circumstances [**63] here.

I recognize, of course, that Batson requires that we

look to all the relevant facts and circumstances in

assessing whether an inference of discrimination should

arise. See Batson, 476 U.S. at 96. Yet by far the most

important factor in this case, and one that I believe the

C48

Illinois courts were too quick to overlook, is that all

seven African-American members of the jury venire

were excused by the State, meaning that not a single

member of Mahaffey’s own race was seated on the jury

that decided his fate.® This is therefore not a case in

which only one or two members of a particular racial

group were excused while other members of the same

racial group remained; it is instead a case where the

State exercised seven of thirteen total challenges to

exclude every member of Mahaffey’s own race. That

strikes me as fairly compelling evidence of discrimina-

tion, at least at the prima facie case stage, where the

State has not yet been required to articulate its race-

neutral reasons for striking the African-American

jurors. An inference of discrimination is particularly

appropriate, I believe, in light of the Supreme Court’s

admonition in Batson that we be mindful of the fact

that “peremptory [**64] challenges constitute a jury

selection practice that permits ‘those to discriminate

who are of a mind to discriminate.’” 476 U.S. at 96

(quoting Avery v. Georgia, 345 U.S. 559, 562, 97 L. Ed.

1244, 73 S. Ct. 891 (1953)). The Supreme Court in

Batson emphasized that an inference of discrimination

may arise where the prosecutor makes a pattern of

strikes against African-American jurors. 476 U.S. at 97.

I submit that such a pattern plainly is evident in the

State’s juror challenges here, where the prosecutor

excused each and every African-American member of

the jury venire. See McCain v. Gramley, 96 F.3d 288,

® There was of course an African-American alternate who sat

through Mahaffey’s trial, but she did not deliberate on the ver-

dicts either at the conviction or penalty phase.

C49

292 (7th Cir. 1996) (inference of discrimination may be

drawn “where there are only a few members of a racial

group on the venire panel and one party strikes each

one of them”), cert. denied, 137 L. Ed. 2d 482, 117 S.

Ct. 1320 (1997); United States v. Sowa, 34 F.3d 447,

452 (7th Cir. 1994) (“The government easily made its

prima facie case that the peremptory challenges were

motivated by race; each and every black venireperson

[six in all] was challenged.”), cert. denied, 513 U.S.

1117, 130 L. Ed. 2d 796, 115 S. Ct. 915 (1995); Splunge

v. Clark, 960 F.2d 705, 707 (7th Cir. 1992) (prima

(**65] facie case shown where both African-American

members of the jury venire were excluded by the pros-

ecution).

And lest we forget, the crimes at issue in this case

were obviously racially-sensitive—Mahaffey, a young

African-American male from Chicago’s South side, was

charged with murdering a white couple on the North

side, and with attempting to murder their young son.

This is therefore a case in which the racial composition

of the jury could potentially be a factor in how the jury

might respond [*693] to Mahaffey’s defense at trial, as

well as to his arguments in mitigation at the capital

sentencing phase. See Williams v. Chrans, 945 F.2d

926, 943-45 (7th Cir. 1991), cert. denied, 505 U.S. 1208,

120 L. Ed. 2d 877, 112 S. Ct. 3002 (1992). Before the

judgment of the essentially all white jury in this case

is executed, I believe that the State at least [**66]

should be required to explain why it excused each

venire person of Mahaffey’s own race.

I am sensitive to the fact that Judge Hett was pres-

ent during the jury voir dire and that, in his view, all

of the relevant facts and circumstances did not produce

C50

an inference of discrimination. Yet Judge Hett came to

that conclusion only after comparing the seven African-

Americans whom the State excused from the jury with

the six whites who were similarly excused. The state

trial judge essentially found that because the excused

African-Americans and the excused whites had similar

characteristics, an inference of discrimination should

not be drawn from the decision to strike the African-

Americans. Batson Hearing Tr. at 54. But rather than

comparing the excused African-Americans to the ex-

cused whites, I think the trial judge should have been

comparing the excused African-Americans to the whites

who remained, for only through such a comparison

could the judge assess whether race played any role in

the State’s challenges. If an excused African-American

juror had characteristics and opinions that were similar

to those of a white juror who sat, for example, then the

obvious inference, at least prior [**67] to the articula-

tion of a race-neutral explanation for the strike, would

be that the strike was racially motivated. As far as the

voir dire record would reveal, the stricken juror’s race

would be the only characteristic distinguishing the

African-American from the white who was retained. I

find it significant in that regard that Judge Hett found

at the Batson hearing that the whites who sat on Ma-

haffey’s jury were similar to the African-Americans the

State had excused. Id. at 51. That finding indicates to

me that the African-Americans on the jury venire may

have been singled out, as they may have been treated

differently than whites with the same or similar char-

acteristics. And the inference of discrimination that

would arise in that circumstance is unaffected by the

fact that some whites with the same characteristics also

C51

may have been excused—the State stil] struck all the

African-Americans while retaining some of the whites,

and despite having strikes available that went unused.

In short, I believe that the showing made by Mahaf-

fey at the Batson hearing was sufficient as a matter of

law to require the State to come forward with race-

neutral explanations for each of the challenged [**68]

strikes. We should therefore remand this case to the

district court to enable the State to do so now.

ITI.

The crimes of which Jerry Mahaffey stands convicted

are indeed horrific, and the evidence certainly supports

the jury’s conclusion that Mahaffey was a perpetrator

of those crimes. I have no doubt, moreover, that an

Illinois jury could conclude, as this jury did, that Ma-

haffey deserved the death penalty as a consequence.

But how I wish I were confident that the jury making

those decisions had been selected in a constitutional

manner. I simply cannot be confident on this record.

The State of Illinois should once and for all be re-

quired to articulate its true reason for striking each of

the seven African-American venire persons from the

jury that ultimately rendered those judgments. As the

State itself concedes, it has never done so in the ex-

tended history of this case, nor has any court ever

assessed the legitimacy of those reasons under the

dictates of Batson. The majority’s conclusions to the

contrary, as I believe I have demonstrated, are without

support in the state court record.

For all of these reasons, I most respectfully dissent.

APPENDIX D

JERRY MAHAFFEY, Petitioner-Appellant, v.

THOMAS PAGE, Warden, Defendant-Appellee.

No. 97-4137

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

160 F.3d 1139; 1998 U.S. App. LEXIS 28201

October 26, 1998, Decided

PRIOR HISTORY: [*1]

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Div. No. 95 C

6623. James B. Zagel, Judge.

Original Opinion of August 6, 1998, Reported at: 1998

U.S. App. LEXIS 18189.

JUDGES: Before Hon. WALTER J. CUMMINGS, Cir-

cuit Judge, Hon. JOEL M. FLAUM, Circuit Judge, Hon.

ILANA DIAMOND ROVNER, Circuit Judge.

OPINION: ORDER

On consideration of the petition for rehearing and

suggestion for rehearing en banc filed by petitioner-

appellant on August 27, 1998, and the answer of re-

spondent-appellee, all of the members of the original

panel have voted to grant the petition for rehearing.

Accordingly, the petition for rehearing is granted, and

the panel will take the case under advisement on the

briefs and the record.

APPENDIX E

UNITED STATES OF AMERICA ex rel.

JERRY MAHAFFEY, Plaintiff, v.

HOWARD PETERS, III, Defendant.

No. 95 C 6623

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT

OF ILLINOIS, EASTERN DIVISION

978 F. Supp. 762; 1997 U.S. Dist. LEXIS 13597

September 5, 1997, Docketed

DISPOSITION: [**1] Petition for Writ of Habeas Cor-

pus denied.

CORE TERMS: juror, prosecutor, brother, death penal-

ty, psychological, sentencing, defense counsel, mitiga-

tion, psychologist, confession, sentence, boy, prima facie

case, peremptory, guilt, woman, gun, mental condition,

mitigate, prison, mental retardation, arrest, killers, hit,

jury selection, conversation, impression, interview, bru-

tality, retarded

COUNSEL: For JERRY MAHAFFEY, plaintiff: Alan

Michael Freedman, Freedman & Bornstein, Chicago, IL.

For JERRY MAHAFFEY, plaintiff: Gary O. Prichard,

United States Environmental Protection Agency, Chica-

go, IL.

For HOWARD PETERS, III, defendant: Arleen C. An-

derson, Illinois Attorney General’s Office, Chicago, IL.

For HOWARD PETERS, III, defendant: Sally Louise

Dilgart, Judy L. Deangelis, Renee Goldfarb, Cook Coun-

ty State’s Attorney, Chicago, IL.

JUDGES: James B. Zagel, United States District

Judge.

OPINION BY: James B. Zagel

OPINION: [(*764] MEMORANDUM OPINION AND

ORDER

Jerry Mahaffey and his brother, Reginald invaded the

Pueschel home, murdered a husband and a wife and

tried hard to murder their eleven-year-old son. This

was found by a jury which also decided that he de-

served to die for what he had done, and he was sen-

tenced to death. After unsuccessful challenges to the

sentence in state court, he seeks to overturn the judg-

ment in federal court. With neither fact nor law to jus-

tify his federal claims, he cannot prevail. I deny his

petition for a writ of habeas corpus and allow the law

to proceed on its stern course.

The crimes were discovered [**2] by the father of Jo

Ellen Pueschel who found her dead body and that of

her husband, Dean Pueschel in their home. He first

found his severely beaten grandson, Richard wandering

near the alley by the home. The eleven-year-old Richard

swore that in the night he awoke to find himself in a

headlock, being told by two separate voices to “shut up

and be cool.” He could not remember whether he fell

asleep or was knocked out, but he did later wake and,

in a daze, walked into his kitchen, where he was told to

stay on the floor next to his mother. He did so, and saw

his mother being struck.

hla alti Gh Nica nah) Ra

Missing from the home were a video recorder, video-

tapes, an Atari game console, seven game cartridges,

several items of the Pueschel’s jewelry, along with a

-357 magnum revolver and a shot gun. Pueschel’s red

Camaro was missing as well.

The Pueschel’s Camaro was recovered on August 30,

1983 in a parking lot at 2245 West Lake Street in the

Henry Horner projects.

(*765] On September 2, Jerry Mahaffey’s brother,

Cedric apparently made contact with the police and

made statements which led to the arrest of Jerry and

Reginald Mahaffey and the recovery from Jerry’s resi-

dence of the video recorder, the Atari game and [**3]

cartridges. In Reginald’s residence was found the .357

revolver and 24 pieces of jewelry. At arrest, Reginald

was wearing Dean Pueschel’s ring and carrying his

watch.

Both defendants confessed to an Assistant State’s

Attorney, and both confessions were read in full to the

jury. Reginald’s confession was ultimately admissible

against Jerry Mahaffey because Reginald testified on

his own behalf.

Jerry Mahaffey told the prosecutor that he and Reg-

inald had discussed committing a burglary on the north

side and drove toa clothing store at Howard Street and

Western Avenue. Jerry saw a “paddy wagon” in an

alley, so Reginald drove around the block and parked in

a lot. After deciding not to burglarize the store, they

were unable to restart their van. They walked away

from it and saw an open window leading into a bath-

room. They climbed through the window into the bath-

room. They went into the “grown-ups’ room” and the

“boy’s room” and then to the kitchen where Reginald

picked up a knife. Jerry wiped everything Reginald

touched “for not finding fingerprints.” They went to the

boy’s room, and Jerry tried to strangle him with a

towel, then they put a pillow over his head, and Regi-

nald strangled [**4] him four to five times. The boy

kept struggling, and Jerry hit him on the head with a

baseball bat he found in the room.

The brothers Mahaffey each took a bat from the boy’s

room, went to the other room and proceeded to hit the

man on the head with the bats. Reginald took the

woman to the living room where he raped her and

forced fellatio. Jerry went into the room where the

woman was present but returned to the man’s room

where the man was pulling a pistol out. Jerry hit the

man with the baseball bat and then returned to the

living room. Reginald asked the woman where there

were other guns, and she told them. They went to get

them, two could not be removed from a locked rack, but

Reginald did get a shotgun. The man started moving

again, so Reginald stabbed him four or five times in the

chest and the side.

Reginald asked the woman for the keys to the car and

took her with him to the car so she could disarm the

alarm. He took her back to the house, and Jerry loaded

their stolen goods in the car. During his statement,

Jerry Mahaffey identified as the stolen items those

things recovered from his and his brother’s residences.

After loading up the car, Jerry went back to the

house and [**5] told the woman to lie down. The boy

was now with her saying, “Ma, Ma, Ma, Ma.” Reginald

struck her on the head several times with the pistol

which blows killed her.

The brothers then drove the car to Reginald’s house

where they left their stolen goods. After this, they

abandoned the car in the Henry Homer projects. !

(**6] No prints of either of the brothers were found at

the crime scene. There was physical evidence of inter-

course, but no sign of vaginal trauma. The sperm was

untypable.

The survivor of this offense could not remember what

else happened, but in court he identified (at a 99% level

of certainty) Jerry Mahaffey and Reginald Mahaffey as

the two men in his home that night of August 28-29,

1983. Richard Pueschel conceded that he had been

unable to identify either Mahaffey in a lineup conduct-

ed when he was being hospitalized for his wounds. He

denied having seen photos of the Mahaffeys in the

(*766] papers. He said he had only described the as-

sailants, one as 5'10" or 5'11", 160 to 180 pounds,

medium Afro, possibly scarred on his left cheek, and

the other as 5'9" or 5'10", 150 to 170 pounds, skinny,

short Afro and short moustache. An investigating de-

tective had a different description in his reports and

' Reginald Mahaffey’s statement was not dissimilar. The dif-

ferences were (a) Jerry said the clothing store burglary was

abandoned because of the police vehicle—Reginald said it was

because of the traffic; (b) Jerry said he wiped Reginald’s

prints, an act unmentioned by Reginald; (c) Jerry said the

woman performed fellatio on Reginald, Reginald said it was

Jerry who was fellated; (d) Jerry said Reginald stabbed the

boy, Reginald said Jerry stabbed the boy; (e) Jerry said Reg-

inald stabbed the man, an act unmentioned by Reginald; (f)

Jerry said Reginald hit the woman over the head with the

revolver, Reginald said that, as he left the house, he could

hear “solid hits” which “told him [Jerry] was finishing the lady

and her son off with the bats.”

said his description was based on a canvass of residents

in the Pueschel’s apartment building. The description

said one assailant was 25-30 years of age, 6'2", 210

pounds, scraggly beard, white shirt, black male, and the

other assailant was 25-30 years of age, 5'4"-5'6", 125

pounds, dark clothing [**7] and a light-complected

black or Latino.

The brothers Mahaffey were tried jointly. At trial,

Jerry Mahaffey defended on grounds of coercion of the

confession and the reasonable doubt arising from the

absence of physical evidence and any identification

other than that of the young, injured boy.

Reginald Mahaffey took the witness stand, denied his

guilt, denied that any stolen property had been re-

moved from his home, but then stated that he had pur-

chased the stolen property from a man who visited his

apartment shortly before the arrest. He also offered the

theory that the real culprit was Cedric Mahaffey.

The police did not arrest Cedric Mahaffey despite his

knowledge of unpublished details of the crimes and the

fact that he was a light-complected black. Cedric Ma-

haffey’s prints were never compared to the ones found

at the crime scene.”

* Ruling that Reginald Mahaffey’s counsel had opened the

door to an inquiry about what Cedric Mahaffey said to the

police, the jury (after being instructed that the evidence was

admissible only against Reginald Mahaffey) heard that Cedric

Mahaffey told officers he knew who committed the murders,

but would not say until he could be sure of their involvement.

He asked if a gun was taken, and when told the answer was

yes, Cedric Mahaffey correctly described the guns and agreed

to tell the officers where the killers lived. He also produced a

(continued...)

(**8] The jury convicted both men of all charges

except that it acquitted Reginald of deviate sexual

assault.’ At the sentencing hearing, members of Jerry

Mahaffey’s family testified, and so did Mahaffey who

denied committing the crime. His counsel argued that

prison was so bad that life in prison was enough pun-

ishment, that no one should be executed and that the

crime was not planned in advance. The jury thought

the death sentence was called for under Illinois law,

and the trial judge decided to sentence Jerry Mahaffey

to death.

This habeas corpus proceeding presents an attack on

the conviction and on the death penalty. The principal

theme is a customary one of incompetency of counsel

* (...continued)

videotape he said was taken from the victims’ home. He

acquired the tape when a “friend” called him on September 1

to help “move some stuff.” With his friend and another person,

he helped move video equipment and cassettes, and he saw

the .357 magnum and a 12-gauge shotgun. During the move,

the friend said that he and the other person had gotten items

during a burglary where they “killed a couple of people on the

north side and a little boy lived.” Finally, Cedric Mahaffey told

the police the two persons were his brothers, Jerry and Reg-

inald. One of the brothers told him they had gone to commit

a burglary, and their van broke down. They left it, crawled

through an open window, found a boy asleep and beat him.

They found the man and woman, beat them, had sex with the

woman, took property, and loaded it into the car that was in

the driveway. Cedric Mahaffey told the police where the vari-

ous items of property could be found.

* The jury decided charges of murder (intentional, knowing

and various forms of felony murder) of the parents, attempted

murder and various forms of aggravated battery on the son.

There were also charges of rape, deviate sexual assault (as to

Reginald) and finally home invasion.

but some trial errors are raised as well and these [**9]

involve some matters to which defense counsel did ob-

ject at trial.

The defendant’s arguments here are ably drafted, but

they fail primarily because they are based on a mis-

reading of the law, a misreading of trial counsel’s posi-

tion and the defense of it he was first asked to make

several years after the trial and a misreading of the

trial record. The principal arguments depend on a nar-

row focus on specific details combined with a relentless

ignoring of the factual context of the case as a whole.

The recitation of the prior legal challenges to convic-

tion and sentence may be tedious but what has gone

before counts in habeas corpus law.

(*767] On automatic appeal, defendant raised the

claims of (i) racially discriminatory jury selection, (ii)

improper exclusion of one juror for her death penalty

views, (iii) failing to notify defense counsel that the

young boy who survived the attack had told prosecutors

he could identify the killers in open court, (iv) wrongly

refusing to grant a mistrial or a new sentencing jury

after the mother of Jo Ellen Pueschel rose during trial

to ask Reginald Mahaffey if he killed her daughter, (v)

improperly admitting a medical record to prove the

absence of coercion [**10] leading to a confession, (vi)

failure to prove the corpus delicti, (vii) improperly

conducting a joint death penalty hearing, (viii) improper

closing arguments which undermined the presumption

of innocence, appealed to fear, misstated the law and

minimized the jury’s sense of responsibility, (ix) the

failure to prove one aggravation factor, (x) the refusal

to instruct the jury that the alternative to death was

fei at OR MSE AE, ORAL 8.5 EE A LRN Th wl Aa

OE PLS ES FN SE a IY eye De Oi a Se Mol

ee wen

natural life imprisonment, (xi) excessiveness of the

death penalty, (xii) the absence of enough information

for an adequate appellate review of the sentence, and

(xiii) various flaws in death penalty procedures in IIli-

nois, to wit, prosecutorial discretion, the absence of a

burden to disprove mitigating circumstances, the in-

ability to rely purely on sympathy and mercy and that

blacks are more likely than whites to receive the death

penalty.‘

(**11] In the state post-conviction proceeding, defen-

dant raised a constitutional claim based on the failure

of the Illinois Supreme Court to apply its decision in

People v. Gacho 122 Ill. 2d 221, 522 N.E.2d 1146, 119

Ill. Dec. 287 to Mahaffey’s case, another based on the

failure to preserve the right of individualized sentenc-

ing, an argument that the allocation of peremptory

challenges was wrong and an argument based on the

issues resolved now in.Free v. Peters, 12 F.3d 700 (7th

Cir. 1993). There was a lengthy attack on the compe-

tency of counsel. This argument was that counsel had

a conflict of interest because it was his partner who

defended Reginald Mahaffey, and that counsel failed to

interview witnesses, investigate mental disability short-

comings for mitigation and evidence suppression pur-

poses, or give a coherent closing argument. He was also

said to have committed errors which cumulatively made

his defense incompetent. Apparently it was, around this

* In the case on direct appeal the Illinois Supreme Court re-

versed Reginald Mahaffey’s conviction deciding that his case

ought to have been severed in light of Jerry Mahaffey’s con-

fession. On retrial he was again convicted and sentenced to

death. People v. Mahaffey, 166 Ill. 2d 1, 651 N.E.2d 1055, 209

lll. Dec. 607 (19985).

E10

time, that Mahaffey’s post-conviction counsel tried to

discuss the case with trial counsel. A letter dated Dec.

5, 1991 asked trial counsel to submit to an interview

regarding his thought processes at the 1985 trial. He

apparently refused to do so, and the state court refused

to [**12] order a deposition.

This habeas petition rehearses the post-conviction

arguments. I address each of them in turn, but first I

will state the context in which Steven Decker, the de-

fense counsel, had to make his decisions.

The crime itself was both heinous and heartless. No

one here disputes this now and the Mahaffeys did not

dispute it then.

What the jury heard here, what any jury would have

heard, was the tale of a grandfather who, along with

his wife, became concerned at the failure of his grand-

son, Richard to arrive so they could babysit for him.

After phoning the boy’s home and the parents’ work-

places to no avail, he drove to the Pueschel house and

found his eleven year-old grandson wandering, blood

covered and beaten, outside the family home. Richard

told him that “mom and dad are dead”. The grandfather

went in and saw the horrific scene for himself as did

the jury by means of photography. While the grand-

father and Richard waited for the ambulance, all the

traumatized young boy wanted at that moment of his

life was to have his grandfather open a soft drink for

him. The grandfather was unable to do so that morn-

ing. This was a very powerful image of victimization, it

is striking [**13] even in the dry text of transcript.

The killers entered the house the night before and

slew the father by battering him with a baseball bat

Eil

and stabbing him many times. The mother was bat-

tered to death too. The boy was severely battered and

(*768] stabbed. The killers stole jewelry, guns, a video

recorder, a video game, video cassettes, and game cart-

ridges.

The defendant, Jerry Mahaffey and his brother were

both identified by Richard as the killers, and Jerry

Mahaffey and his brother both confessed to being the

killers, and in Jerry Mahaffey’s case the confession of

his brother was admissible against him.

By the time the jury set out to decide the penalty, it

had found that Jerry and Reginald Mahaffey were the

killers and it knew all of the details of the crime. The

brothers entered the Pueschel home because their orig-

inal intent to burglarize a store could not be carried

out. Jerry Mahaffey systematically erased fingerprints,

tried to strangle Richard with a towel and hit him in

the head with a baseball bat. Jerry Mahaffey hit the

father several times with a baseball bat. He also stood

by (at the very least) while his brother criminally sexu-

ally assaulted the mother and stabbed the father [**14]

and then battered the mother to death with a handgun.

He helped steal their property and drove off in their car

which he wanted to burn. He kept some of the stolen

goods in his apartment. To devise a defense strategy

counsel had to operate within the constraints presented

by the facts found against his client and the constraints

presented by his client’s response to the charges.

Mahaffey begins his efforts here with an attack on

the competency of counsel at sentencing, an attack

unsuccessfully made in the Supreme Court of IIlinois.

The standards by which counsel’s competency is

judged are well known since Strickland v. Washington,

E12

466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).

Their application to capital sentencing cases requires

defense counsel to “make a significant effort, based on

reasonable investigation and logical argument, to ably

present the defendant’s fate to the jury and to focus the

attention of the jury on any mitigating factors.” Kubat

v. Thieret, 867 F.2d 351, 369 (7th Cir. 1989). What this

means in practice is not very well known, although in

the following cases counsel was deemed ineffective. In

Kubat, no evidence in mitigation was presented [**15]

and the closing argument was neither logical nor co-

herent and presented the jury with a coda that served

to aggravate rather than mitigate. In Hall v. Washing-

ton, 106 F.3d 742 (7th Cir. 1997), defense counsel did

virtually nothing to investigate mitigation and offered

a diatribe against the death penalty as his sole argu-

ment for mercy. In Brewer v. Aiken, 935 F.2d 850 (7th

Cir. 1991), defense counsel had knowledge of Brewer’s

psychiatric problems and refused to use it despite the

absence of any other mitigating theory and the fact

that it might have supported his client’s version that he

played a lesser role in the offense. See also Emerson v.

Gramley, 91 F.3d 898 (7th Cir. 1996) (no effort by coun-

sel).

In Stewart v. Gramley, 74 F.3d 132 (7th Cir. 1996),

counsel was competent who called witnesses to estab-

lish Stewart’s difficult early life but failed to introduce

other evidence of severe problems in Stewart’s upbring-

ing—this was so because counsel’s conversations with

Stewart turned up nothing remarkable in his personal

history.

The summary of the rule in Hall v. Washington is

simple. A decision not to present evidence “can ration-

WES Pesala seiko’ Eee rtiely

E13

ally be made . . . only after (**16] some inquiry or

investigation by defense counsel... . . This does not

mean that only a scorch-the-earth strategy will suffice

... But it does mean that the attorney must look into

readily available sources of evidence. Where it is ap-

parent from evidence concerning the crime itself, from

conversation with the defendant, or from other readily

available sources of information, that the defendant has

some mental or other condition that would likely qual-

ify as a mitigating factor, the failure to investigate will

be ineffective assistance.” 106 F.3d at 749-50.

In this case, it is the mental condition and the psy-

chological makeup of the defendant which is at the

heart of this aspect of the habeas corpus challenge.

What Steven Decker did not do is have Jerry Ma-

haffey examined by a psychiatrist, nor did he review

Mahaffey’s grammar school records or speak to more of

Mahaffey’s family members. If he had done so, it is now

said, he would have learned that Mahaffey is mentally

retarded, has a psychological [*769] disorder, witnessed

violence at an early age, and on occasions helped his

youngest sister and the elderly.

What Steven Decker did is call three of Jerry Ma-

haffey’s relatives—his mother, wife (**17] and sister—

who testified about his upbringing in a bad neighbor-

hood and his redeeming qualities as a family member,

his loving relationship with his children and his nieces

and nephews. Jerry Mahaffey testified to the terrible,

punitive nature of life in prison. He argued reasonably

well that which he could argue—the crime was fortu-

itous, not planned in advance, like a contract killing,

that the jury should not kill anyone for all death is ter-

E14

rible, and that life in prison is so bad that it is punish-

ment enough.

Why did Decker act as he did? We have his written

answers to Mahaffey’s questions. Decker’s responses are

designated as preliminary and there are some things

which escape his recall’ but his basic response, fairly

read, is that he spoke to members of his client’s family

and to his client. He was unaware of the fact that a

clinical psychologist would have found Mahaffey had a

full scale I.Q. of 67 but even so would have waited

before introducing such evidence (at the suppression

hearing) because of his own knowledge of his client’s

° Decker no longer has his case file. It either was routinely

destroyed after the passage of some time or given to subse-

quent counsel. Mahaffey’s counsel criticizes disposition of the

file by noting that competency of counsel is an issue likely to

arise in capital cases and that Decker ought to have kept his

file. There may be some truth to this, but it sounds hollow in

Mahaffey’s mouth; the trial ended in February, 1985 and it

was not until December 1991 that anyone ever attempted to

interview Decker about the reasoning for his decisions in the

conduct of the defense. Mahaffey had new counsel from the

inception of the initial appeal process and they knew as well

about the possibility of an attack on trial counsel’s compe-

tence. If there are gaps in the historical record, they are as

much or more the responsibility of Mahaffey’s later lawyers as

they are Decker’s. And Mahaffey does not claim that his later

lawyers were incompetent for failing to interview Decker at an

earlier time. This is not surprising because it is ordinarily a

tactical advantage to a defendant to let time pass and memo-

ries fade. Our law is that counsel’s conduct cannot be defended

on grounds that defense counsel does not offer. Harris v. Reed,

894 F.2d 871, 878 (7th Cir. 1990). It is competent lawyering to

wait and hope that the prior lawyer forgets all or part of the

reasons for his actions. It is not very fair, however, to then

offer belittling criticisms of trial counsel for failing to keep

records to protect against forgetting. [**19]

E15

ability to understand and communicate which I read to

mean that Steven Decker did not think his client was

retarded. He did not see any [**18] need to have a

psychologist examine his client (prior to the motion to

suppress). While Jerry Mahaffey adopted the ploy of

trying to portray some inability to read, counsel be-

lieved Jerry could read, and the introduction of evi-

dence that he could not do so would have been fraud on

the court. He had conversations with family members

and anyone who indicated to him that they might have

something useful to say. He interviewed the mitigation

witnesses before putting them on the stand though this

is disputed in part. He consulted with his client to dis-

cover if there were other witnesses that might be help-

ful on sentencing. He took some affirmative steps to

explore past mental history, but does not recall what

they were, and he believes that one reason he had no

psychological examination performed before sentencing

was his concern that his client would have confessed to

the psychologist.’

° I attach very little weight to counsel’s post-hoc response to

a question that essentially asks “If you knew you could have

had a psychiatrist say your client was non compus mentis,

would you have called him to the stand.” Counsel who knows

his strategy has failed may believe that any other option

would be better than what was done.

* Mahaffey’s counsel mocks Decker’s concern about a full con-

fession to a psychologist. This risk could have been diminished

by counsel's presence at the interview, but the value of a psy-

chological examination in which defense counsel reserves the

right to control defendant’s answers is not likely to be very

useful. The privilege is helpful, but counsel may be reluctant

to depend on the privilege as an absolute protection of con-

fidentiality. See, e.g., United States v. Diamond, 964 F 2d

(continued...)

E16

(*770] The clear purport of this is that nothing in his

client’s demeanor or actions showed Steven Decker that

his client had a mental condition that would mitigate

sentence, and in this regard he considered the written

confession as well. Decker reviewed the conversations

he had with family members, asked them for other po-

tential “itnesses, and interviewed trial witnesses and

any others who indicated some contact with his client

to see if they had something useful to say on sentenc-

ing. These are precisely the things which Hall said that

defense counsel should do.

’ (...continued)

1325, 1328 (2d Cir. 1992) (“We recognize the existence of a

psychotherapist-patient privilege . . . however, we also recog-

nize ... that the privilege is highly qualified and requires a

case-by-case assessment of whether the evidentiary need for

the psychiatric history of a witness outweighs the privacy

interests of that witness.”) See generally Thomas Zambito &

Mary Jo Layton, Legal Experts See Erosion of Doctor-Patient

Trust, The Record, June 10, 1994 (Dr. Paul Applebaum, Chair-

man of the American Psychiatric Association’s Council on

Psychiatry and the Law, noted a marked increase in the num-

ber of cases where courts allowed a breach of the doctor-

patient privilege.) A full confession to a psychologist might put

counsel in a difficult ethical position. More importantly,

though, counsel does not now specifically rely on this, a psy-

chological assessment which is made in the absence of a de-

fendant’s version of his mental state during the offense may

be valueless. Indeed, Dr. Harry Gunn, Mahaffey’s psychologist,

here never explains in any way how it is that Mahaffey’s

criminal conduct is explained or mitigated by his mental con-

dition. Dr. Gunn does not say Mahaffey did not know the seri-

ousness of the offense or could not control himself or followed

his brother down the path of evil. This contrasts to his clear

opinion that it is highly probable Mahaffey did not understand

the Miranda warning. Even without these considerations,

Decker had an adequate basis for not seeking psychological

examination, that is, his impressions of his client. [**20]

E17

Steven Decker explicitly describes in the record before

me an adequate investigation that he made into Ma-

haffey’s sentence. It is implicit that based on his deal-

ings with his client and his client’s family that he saw

no basis to pursue a psychological defense.®

There is no need to conduct [**21] an evidentiary

hearing on counsel’s reasons for his actions. He has

explained them in written deposition, and it is clear

that he would not be able to recall all of his reasons.

His primary reasons, these he does recall and state,

and nearly all of these are clearly inferable from the

record. I did hold a hearing on May 22, 1997 with

respect to certain concrete actions that Decker alleges

he took and others deny, and I find as follows.

At the May 1997 hearing Myrtis Mahaffey testified

that she had not been prepared for her appearance as

a witness at Jerry Mahaffey’s sentencing hearing. She

also denied having much conversation at all with

Steven Decker. Yet she did concede that she spoke to

him once or twice a week during the time that he

represented Jerry. And she admitted having called

Steven Decker for legal advice within two months

previous to the May 1997 hearing. I credit Decker’s

testimony that he prepared Myrtis Mahaffey for her

testimony.

‘On the written transcript and even more so in the

courtroom, Myrtis Mahaffey is an unhelpful and in-

articulate witness. It is incredible that the testimony

* In his affidavit, Mahaffey does not deny that he conferred

with Decker. He specifically denies that Decker asked him

about witnesses for the sentencing hearing.

E18

she gave at trial could have been accomplished without

decent preparation. Jerry Mahaffey [**22] was not a

credible witness. I found that he did not answer ques-

tions in a truthful manner but rather with the aim of

improving his chances in this case. His description of

Steven Decker’s conversations with him before and dur-

ing trial is patently false given the evidence that was

presented at trial (including Mahaffey’s testimony on

motions and at sentencing). Indeed Mahaffey reaches

(or, more properly, overreaches) beyond his own coun-

sel’s present contentions about the nature of the incom-

petency of counsel. Here, too, I believe Steven Decker.

Moreover, if the Jerry Mahaffey I saw in 1997 is like

the Jerry Mahaffey that Steven Decker saw in the mid-

1980s, then Decker is not to be faulted for failing to

consider mental retardation. Prior to his arrest Mahaf-

fey was employed full time, living with his family and

reasonably capable of holding his own under examina-

tion. Mahaffey may not read well but I doubt that he is

illiterate. It is true a psychologist found him nearly

illiterate, but I doubt the result of any test which

requires an earnest effort from Mahaffey who is, I

believe, conscious of the fact that demonstrating an

ability to read will not help his case. It is also true that

[**23] Decker tried to give the trial court the impres-

sion that Mahaffey might not be able to read or under-

stand the Miranda warnings. But Decker did not regard

either of these things [*771] as truthful, and he did not

have to regard them as so in order to argue that the

prosecution failed to prove a knowing waiver of Mir-

anda rights.

Finally, I credit Decker’s assertion that he prepared

Rita Mahaffey for her testimony. Steven Decker did

E19

consider calling family members at trial, and I believe

that he reasonably “thought the best ones to put on the

stand were those that were called... .” Decker knew,

after all, about the “division among the family .. .

animosity between different members of it as a result

of the .. . events that led to [Jerry’s] arrest, which was

put in force apparently by one of his brothers.”

In sum, the evidentiary hearing and the written rec-

ord establish that Steven Decker could have spent more

time on the case and made further investigations. It

does not establish that Steven Decker should have done

so.

These decisions are within the range of reasonable

competence.’ But even if they are considered without

according any deference to Decker’s judgment, Mahaffey

could not show [**24] prejudice under Strickland v.

Washington, 466 U.S. 668, 695, 80 L. Ed. 2d 674, 104

S. Ct. 2052 (1984),

Consider first the evidence of mental retardation. A

clinical psychologist found a verbal I.Q. of 71, a per-

formance I.Q. of 67 and a full scale I.Q. of 67—all of

which constitutes mild mental retardation. Mahaffey’s

counsel say

Evidence of mental retardation is perhaps the most

significant mitigating factor there is to defeat the

death penalty. . . . This opinion is confirmed by

* The only way in this case that Mahaffey can prevail on his

claim of inadequate investigation is to assert that capital de-

fense counsel must always seek psychological examination and

must always seek to examine grammar school records. Peti-

tioner’s counsel candidly state that there is no precedent cited

for the proposition.

E20

numerous social scientific studies which make clear

that .. . the overwhelming majority of Americans

also oppose the death penalty for mentally retarded

defendants.

Despite this assertion, there are [**25] no “numerous

social scientific studies” cited, there is only one, and it

does not establish that evidence of mental retardation

would have any reasonable probability of affecting the

outcome here. Most of what is offered is simply the

unscientific opinion of death penalty defense counsel,

one in affidavit form and the other in the form of a law

review article. Blume and Bruck, Sentencing the Men-

tally Retarded to Death, An Eighth Amendment Analy-

sis, 41 Ark L. Rev. 725 (1988). Their reasoning largely

precedes from public opinion polling data of the sort

cited by the court in Penry v. Lynaugh, 492 U.S. 302,

334-35, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989),

which rejected the proposition that such polling data

means the Eighth Amendment bars execution of the

mentally retarded.

That many people do not think the mentally retarded

ought to be executed is not of use, per se, in all cases.

Mental retardation ranges from the mild to the severe,

and no polls cited to me tend to prove that a person

committing the offense in this case would be helped on

mitigation of evidence of mild mental retardation. See

Penry, 492 U.S. at 338-39.

There is one study that relies on more than general-

ization. [**26] In a project designed to determine the

differences between death qualified jurors and non-

death qualified jurors, a pool of 717 eligible jurors was

given a hypothetical case involving insanity defenses—

eT eA Ses

BES OEE SA i a. 5 va

E21

two psychogenic, two organic. The mental retardation

case was this:

[A] 32 year old man with an I.Q. of 60 took his

father’s gun, robbed a liquor store and killed the

proprietor, after watching a television program

about a gang of hold-up men. [He] said that he

robbed the store because he wanted money to buy

candy and cigarettes and that he shot the propri-

etor “because robbers are supposed to.” The defense

psychiatrist said [his] intelligence is so limited that

he could not have appreciated the seriousness of his

crime.

What the survey showed was that both death-qual-

ified and non-death-qualified jurors were just about

equally likely to accept mental retardation as a defense.

One could [*772] also read the study to show that

organic mental disorders are likely to find more favor

with jurors than purely psychogenic ones. See Ells-

worth, Bukatz, Cowan:& Thompson, The Death Quali-

fied Jury and the Defense of Insanity, 8 L. & Human

Behavior 45 (1984),'°

(**27] The Ellsworth study does not carry weight

here." In this case, there are two homicides carried out

'0 Judge Easterbrook considered this study and another, Proj-

ect, Standardless Sentencing, 21 Stan L. Rev. 1297 ( 1969), and

observed “whether such defenses actually help the accused is

a close question. The Stanford study finds no effect... . And

the Ellsworth study a small one.” Brewer v. Aiken, 935 F.2d

850, 862 (7th Cir. 1991) (concurring Of . sion).

" The Assistant State’s Attorney who argued and briefed this

case was unfamiliar with the Ellsworth study. It is hard to

understand how one could try to defend this death penalty

judgment without apparently reading the Ellsworth article.

(continued...)

E22

over a period of time by two persons, one of whom,

Jerry Mahaffey, made successful efforts to eradicate

evidence of fingerprints thus demonstrating under-

standing of the seriousness of the crime. Moreover,

Jerry Mahaffey has consistently denied the crime and

never offered an explanation for his actions, e.g., that

he acted because he imitated what he saw on television

or because he simply did as he was told by his brother.

Even a lawyer who had read the Ellsworth article

would have eschewed mental retardation as mitigation

at least in part due to his client’s refusal to offer (even

today) an explanation of his actions that paired with

evidence of mental retardation would serve to mitigate

the offense.

[**28] Next, the psychologist who examined Mahaffey

found borderline personality disorder whose character-

istics include “impulsiveness, mood instability, inappro-

priate anger or control of anger.” Mahaffey, said the

psychologist, “finds it extremely difficult ... to be able

to control his impulses.” The psychological disorder “can

lead to periods of intense anger and acting out as well

as emotional instability with extreme reactive shifts of

mood and affect.”

This is unpromising as mitigation although it might

have a minimal chance of success if it were supported

by some evidence that the personality disorder played

some role in the conduct of the offense. But, it was not.

The offense itself, as the Mahaffeys accounted for it in

their confession, arose neither out of anger or impulse,

1 (...continued)

Nonetheless, the distinctions between Mahaffey’s case and the

hypothetical cases are obvious.

(bie hemitbaliee Bnei ec arse As eMs

i PAESES RAMEE RET BE

E23

it arose out of greed and the desire to leave no witness-

es. Of course, Mahaffey could have explicated his con-

duct in some psychological way or merely could have

claimed a kind of emotional overload that prevented

him even from recalling what he had done.

The evidentiary use of mental disease or defect has to

be anchored in some account of the criminal acts in

order to have any real weight with the jury. [**29] The

relevant statute says so too since it speaks of finding

mitigation in the fact “the murder was committed while

the defendant was under the influence of extreme men-

tal or emotional disturbance. . . .” Jil. Rev. Stat., 1983

Ch. 38, Section 9-1(c). It matters not what disease or

defect exists if it cannot be tied to the crime, and it is

very difficult to do so when defendant persists in deny-

ing participating in the crime. For example, if the sur-

vivor had said the perpetrators were angry, or Jerry

Mahaffey said he was angry, or Jerry Mahaffey said he

could not recall what he was doing at the time of the

crime, then at least the door to the mental condition

mitigation is ajar. The door was never ajar here.’” Even

2 There is an interesting contrast between this case and the

prosecution of Andrew Kokoraleis, another capital case in

which I have issued an opinion. Both trial counsel were cir-

cumscribed by what their clients had said to them, but in

different ways. Andrew Kokoraleis’ trial counsel did not need

to have his client give an account of a disordered mental state

during the crimes, the nature of the crimes themselves was

enough but his ability to make the claim in mitigation foun-

dered tactically on the fact that Kokoraleis swore that he

played no role of any kind in the crimes during the guilt phase

of the trial when he concededly received effective representa-

tion, Jerry Mahaffey’s trial counsel was constrained by the fact

that the nature of the crime (described by a survivor or de-

(continued...)

E24

if it (*773] were, I could not find prejudice because this

evidence shows only that the petitioner is both danger-

ous and out-of-control, and there is no reasonable prob-

ability that it would cause a single reasonable juror to

vote against the death penalty on this ground alone.

This is also precisely the kind of evidence of non-

organic disorder that Judge Easterbrook noted as lack-

ing in jury appeal. He is right. Brewer v. Aiken, 935

F.2d at 861 (concurring opinion).

[**30] This leaves the items which Myrtis Mahaffey

says she wishes to add to the testimony she gave.

Essentially, she portrays herself as a poor mother who

thought the correct response to a dispute between her

daughter and another girl was to see that they staged

a fair fight. She told the other mother, “Your daughter

and my daughter, Rita are going to learn to defend

themselves.” She then watched the fight. Her children

were rough, they would fight and break furniture. She

says, without apparent irony, that “I don’t know what

they’d fight about. They just didn’t seem to have basic

respect for each other.” At times, she told them “I’m

going to let you kill each other and just come back and

bury whoever’s left.” When Jerry Mahaffey was six or

2 (...continued)

scribed by the perpetrators) did not suggest a mental condition

which would mitigate the offense. The only way psychological

opinion about Mahaffey could be related to his crimes was for

Mahaffey to state some factual basis for the relationship. This

course would have been tactically available to his counsel

(whose client did not effectively foreclose it by swearing to his

innocence at the guilt phase) except for the fact that Mahaffey

steadfastly denied the commission of the offenses and would

provide nothing to link his mental condition to the dynamics

of the crime.

PND Se PRON TS. Sekt ee aS

etc eet etEted seles eas ee

E25

seven, she fell into depression for many, many months.

Jerry was always slow in school.

Rita Mahaffey, J erry’s sister, would have added to her

trial testimony that Jerry would walk her home, that

he was good at lifting people’s spirits and either could

not read or could not read too well. Other brothers a

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